11 2 3 IPPERWASH PUBLIC INQUIRY 4 5 6 7 ******************** 8 9 10 BEFORE: THE HONOURABLE JUSTICE SIDNEY LINDEN, 11 COMMISSIONER 12 13 14 15 16 Held at: Forest Community Centre 17 Kimball Hall 18 Forest, Ontario 19 20 21 ******************** 22 23 24 April 26th, 2006 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 8 Murray Klippenstein ) (np) The Estate of Dudley 9 Vilko Zbogar ) (np) George and George 10 Andrew Orkin ) (np) Family Group 11 Basil Alexander ) 12 13 Peter Rosenthal ) Aazhoodena and George 14 Jackie Esmonde ) Family Group 15 16 Anthony Ross ) (np) Residents of 17 Cameron Neil ) (np) Aazhoodena (Army Camp) 18 Kevin Scullion ) 19 20 William Henderson ) (np) Kettle Point & Stony 21 Jonathon George ) (np) Point First Nation 22 Colleen Johnson ) 23 24 25
31 APPEARANCES (cont'd) 2 3 Kim Twohig ) (np) Government of Ontario 4 Walter Myrka ) (np) 5 Susan Freeborn ) 6 Sheri Hebdon ) (np) Student-at-law 7 8 Janet Clermont ) Municipality of 9 David Nash ) (np) Lambton Shores 10 Nora Simpson ) (np) Student-at-law 11 12 Peter Downard ) (np) The Honourable Michael 13 Bill Hourigan ) (np) Harris 14 Jennifer McAleer ) 15 16 Ian Smith ) (np) Robert Runciman 17 Alice Mrozek ) (np) 18 19 Harvey T. Strosberg, Q.C.) (np) Charles Harnick 20 Jacqueline Horvat ) (np) 21 22 23 24 25
41 APPEARANCES (cont'd) 2 3 Douglas Sulman, Q.C. ) Marcel Beaubien 4 Mary Jane Moynahan ) (np) 5 Dave Jacklin ) (np) 6 Trevor Hinnegan ) 7 8 Mark Sandler ) (np) Ontario Provincial 9 Andrea Tuck-Jackson ) Ontario Provincial Police 10 Leslie Kaufman ) (np) 11 12 Ian Roland ) (np) Ontario Provincial 13 Karen Jones ) Police Association & 14 Debra Newell ) (np) K. Deane 15 Ian McGilp ) (np) 16 Annie Leeks ) (np) 17 Jennifer Gleitman ) (np) 18 Robyn Trask ) (np) 19 Caroline Swerdlyk ) 20 21 22 23 24 25
51 APPEARANCES (cont'd) 2 Julian Falconer ) Aboriginal Legal 3 Brian Eyolfson ) (np) Services of Toronto 4 Kimberly Murray ) (np) 5 Julian Roy ) (np) 6 Clem Nabigon ) (np) 7 Linda Chen ) (np) 8 Chris Darnay ) (np) 9 Sunil Mathai ) 10 Adriel Weaver ) (np) Student-at-Law 11 12 Al J.C. O'Marra ) (np) Office of the Chief 13 Robert Ash, Q.C. ) (np) Coroner 14 William Horton ) (np) Chiefs of Ontario 15 Matthew Horner ) (np) 16 Kathleen Lickers ) (np) 17 18 Mark Fredrick ) (np) Christopher Hodgson 19 Craig Mills ) (np) 20 Megan Mackey ) (np) 21 Peter Lauwers ) (np) 22 Erin Tully ) (np) 23 Michelle Fernando ) (np) 24 Maanit Zemel ) (np) 25 Patrick Greco )
61 APPEARANCES (cont'd) 2 3 David Roebuck ) (np) Debbie Hutton 4 Anna Perschy ) (np) 5 Melissa Panjer ) (np) 6 Adam Goodman ) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
71 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 8 4 5 WAYDE ELLARD JACKLIN, Sworn 6 Cross-Examination by Ms. Andrea Tuck-Jackson 10 7 Cross-Examination by Mr. Basil Alexander 14 8 Cross-Examination by Ms. Colleen Johnson 55 9 Cross-Examination by Mr. Peter Rosenthal 100 10 Cross-Examination by Mr. Kevin Scullion 245 11 Cross-Examination by Mr. Julian Falconer 275 12 Cross-Examination by Ms. Karen Jones 331 13 Re-Direct Examination by Ms. Susan Vella 359 14 15 Certificate of Transcript 367 16 17 18 19 20 21 22 23 24 25
81 EXHIBITS 2 No. Description Page 3 P-1421 "Stan" Thompson drawing, September 20, 4 1995, marked by Wayde Jacklin, April 5 26, 2006. 39 6 P-1422 Document Number 1004707. SIU interview 7 with Wayde Jacklin, April 01, 1998. 85 8 P-1423 Examination-in-chief and Cross-examination 9 of Wilhelmus Bittner 306 10 P-1424 Examination-In-Chief of Wayde Jacklin 11 and James Root. 330 12 13 14 15 16 17 18 19 20 21 22 23 24 25
91 --- Upon commencing at 9:07 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. Good morning. Good morning, everybody. I 8 think -- 9 MS. SUSAN VELLA: Good morning. 10 COMMISSIONER SIDNEY LINDEN: Good 11 morning. 12 MS. SUSAN VELLA: We'll proceed then with 13 the cross-examination. 14 COMMISSIONER SIDNEY LINDEN: With Ms. 15 Tuck-Jackson. 16 17 (BRIEF PAUSE) 18 19 COMMISSIONER SIDNEY LINDEN: Good 20 morning. 21 MS. ANDREA TUCK-JACKSON: Good morning, 22 Mr. Commissioner. 23 24 WAYDE ELLARD JACKLIN, Resumed 25
101 CROSS-EXAMINATION BY MS. ANDREA TUCK-JACKSON: 2 Q: Good morning, sir. 3 A: Good morning, ma'am. 4 Q: My name is Andrea Tuck-Jackson. I'm 5 going to ask you questions in two (2) areas in relation 6 to the OPP. 7 First of all My Friend, Ms. Vella, asked 8 you some questions in relation to the peculiarity of 9 executing a search warrant in August of 1993 when the 10 individuals who were the subject of the warrant had word 11 in advance that this was going to be occurring. 12 Do you recall that line of questioning? 13 A: Yes, I do. 14 Q: All right. And you told us, sir, 15 that you believe that Chief Tom Bressette was present 16 back at the Forest Detachment and was party to some of 17 those conversations as to what the police were going to 18 be doing that day. 19 A: That is my recollection. 20 Q: Okay. Was it your impression that 21 the Chief who was present there, was there speaking on 22 behalf of the people at the actual Army Base? 23 A: I wasn't privy to those 24 conversations. 25 Q: All right. We've heard some
111 evidence, sir, that an individual appointed at the time 2 as the Chief of the occupiers over at the Base was a man 3 by the name of Carl George and later went -- goes -- in 4 fact presently goes by the name of Carl Tosma (phonetic). 5 And we've heard both from him and we've 6 heard from other officers who indicated that it's 7 actually Carl George or Carl Tosma who was present that 8 morning and participating in those discussions. 9 I trust you wouldn't have any reason to 10 disagree that you simply got the identification of that 11 individual wrong? 12 A: That is possible. 13 Q: Okay. Thank you, sir. One other 14 area. You spoke to us yesterday about your observations 15 on the morning of September the 6th when you participated 16 in the removal of the picnic tables from the sandy 17 parking lot. 18 Do you recall that area of your testimony? 19 A: Yes, I do. 20 Q: All right. Would it be fair to say, 21 sir, that there were approximately ten (10) to fifteen 22 (15) officers in attendance that morning who participated 23 in the removal of the picnic tables, either physically 24 removing them themselves or standing as cover for the 25 officers who were moving the tables?
121 A: I'm not sure how many but there was a 2 large number of officers. 3 Q: All right. Is my estimate of 4 somewhere between ten (10) to fifteen (15) reasonable? 5 A: I believe that would be fair. 6 Q: Okay. And you told us, sir, that as 7 those officers were arriving, two (2) individuals who 8 were sitting in the parking lot, moved back into the 9 Park. 10 A: That is correct. 11 Q: All right. Was it your belief from 12 your observations that these two (2) individuals were 13 occupiers of the Park? 14 A: Yes. 15 Q: All right. And therefore from your 16 vantage point I gather what your observation was, was 17 that the mere presence of those police officers caused 18 those two (2) individuals to move back into the Park. 19 MR. JULIAN FALCONER: Mr. Commissioner, 20 in my respectful submission, notwithstanding My Friend's 21 reference to the word 'your observation', she's -- the 22 question clearly begs the speculation of the witness -- 23 COMMISSIONER SIDNEY LINDEN: You're 24 pushing that part of the question. I mean, you can ask 25 him what his observation was but you can't go much beyond
131 that. 2 MS. ANDREA TUCK-JACKSON: No. I have 3 actually asked -- 4 COMMISSIONER SIDNEY LINDEN: You've asked 5 this question before. 6 MS. ANDREA TUCK-JACKSON: Of a number of 7 different witnesses and I -- 8 COMMISSIONER SIDNEY LINDEN: I know that. 9 MS. ANDREA TUCK-JACKSON: -- I've asked, 10 sir, what their observations and impressions were. 11 COMMISSIONER SIDNEY LINDEN: Yes, I -- 12 MS. ANDREA TUCK-JACKSON: And that -- 13 that is what I'm seeking. 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 That's fine. 16 MS. ANDREA TUCK-JACKSON: Thank you, sir. 17 18 CONTINUED BY MS. ANDREA TUCK-JACKSON: 19 Q: So again, I appreciate that you can't 20 -- you can't obviously shed light as to what was in the 21 minds of those two (2) individuals. I'm simply asking 22 for your impressions or your observations. 23 And did it appear to you that the mere 24 presence of officers had caused those two (2) individuals 25 to go back into the Park?
141 A: Yes. That was my impression. 2 Q: And also, sir, would you agree with 3 me that there was no physical confrontation between the 4 officers and those two (2) individuals? 5 A: That is true. 6 Q: And you'd also agree with me I trust, 7 sir, that while the police were there, those two (2) 8 officers did not leave the Park, did they? 9 A: The two (2) officers? 10 Q: The two -- I'm sorry, the two (2) 11 individuals who ran into the Park, they didn't come back 12 out into the sandy parking lot while you were there? 13 A: No, they did not. 14 Q: Thank you very much, sir. Thank you 15 for your time. Those are my questions. 16 COMMISSIONER SIDNEY LINDEN: Thank you 17 very much. 18 Yes, Mr. Alexander...? 19 20 (BRIEF PAUSE) 21 22 CROSS-EXAMINATION BY MR. BASIL ALEXANDER: 23 Q: Good afternoon, Staff Sergeant 24 Jacklin. 25 A: Good morning, sir.
151 Q: Good morning, sorry. 2 COMMISSIONER SIDNEY LINDEN: It's still 3 morning. 4 MR. BASIL ALEXANDER: It's one (1) of 5 those days. I'm still thinking it's yesterday afternoon. 6 7 CONTINUED BY MR. BASIL ALEXANDER: 8 Q: My name is Basil Alexander and I'm 9 one (1) of the lawyers for the Estate of Dudley George 10 and several members of the George family including Sam 11 George who unfortunately couldn't be here today due to 12 another commitment, or at least this morning. 13 And I have a number of questions I'd like 14 to ask you. To start with I'd like to -- I'd like you to 15 turn to Tab 13 in your binder please, which for My 16 Friends' reference is Inquiry Document Number 2003606 17 which has been marked as Exhibit P-1343. 18 And this is a statement by yourself it 19 appears about the various things that occurred around on 20 September the 4th. Ms. Vella corrects me that it's 21 Exhibit 1393. 22 Now, the first thing I want to ask you 23 about is you weren't able to tell us when this statement 24 was actually created, correct? 25 A: That is correct.
161 Q: Are you able to give us a general 2 idea in terms of, was it in 1995 post shooting or was it 3 after the shooting? 4 A: I don't recall. 5 Q: You don't recall at all. Do you have 6 any idea if it was done -- the thing I'm focussing on is 7 do you have any idea as to whether or not this statement 8 was done before the shooting or after the shooting. 9 Can you help us out with that? 10 A: My recollection it was done after the 11 shooting. 12 Q: After the shooting. But you're not 13 sure how long after the shooting in terms of when it was 14 done? 15 A: And I'm not sure if it was done after 16 the shooting but my recollection it was probably after. 17 Q: Probably after. Okay. But it would 18 have been done in relatively close proximity to the -- to 19 the incident in all of the -- in -- in all of the -- 20 sorry, let me try that again. It would have been done 21 relatively close to the incident although you're not able 22 to give us a precise date? 23 A: I wouldn't want to speculate on when 24 I -- I gave the statements. 25 Q: Okay. The reason why I'm taking you
171 to this statement is I'm looking at the discussion it has 2 here on the end of page -- end of page 2 and -- sorry, 3 end of page 1 and the beginning of page 2 with respect to 4 what's happened at about 16:00 hours. 5 And there doesn't seem to be any mention 6 of the supposed gun butt that Constable Whelan mentioned 7 to you that day -- 8 A: That's correct. 9 Q: -- or sometime there. So that -- 10 that's correct? 11 A: Yes. 12 Q: And I want to focus on that gun butt 13 a little bit. Do you remember -- if I understand your 14 evidence correctly you indicated that he told you about 15 the gun butt after you guys had -- after everybody had 16 left the -- the incident at 16:00 hours? 17 A: I was not aware -- I was not sure 18 where I received that information. 19 Q: But it did not occur at the incident, 20 correct? 21 A: That's correct. 22 Q: Do you remember if he told you that 23 he saw the supposed gun butt from a distance of 40 to 50 24 feet? 25 A: I have no recollection of that.
181 (BRIEF PAUSE) 2 3 Q: Did he tell you that he observed it 4 for a split or a fraction of a second only? 5 A: I did not recall that conversation. 6 Q: And did he tell you that the supposed 7 gun butt was never take out; in fact it was motioned to 8 keep it in the car? 9 A: Again I don't recall that 10 conversation. 11 Q: If I could move on to another area. 12 I'm going to look at your notes which are at Tab 6 of 13 your binder. Inquiry Document Number 200593, Exhibit P- 14 1387. 15 And I'm looking at your notes for Monday, 16 September the 4th, page 90 in the corner. Do you have 17 it, sir? 18 A: Yes, sir. 19 Q: And I'm looking about halfway down 20 the page and it says that: 21 "P/C Myers and I then patrolled the 22 Park. Had conversation with several in 23 the Park including Bert Manning and 24 they were cordial." 25 So what I'm trying to basically understand
191 is when you -- in terms of who was cordial because from - 2 - the inference when I read this note is there were 3 multiple who were cordial when you and P/C Myers were 4 sitting on that Park bench and talking to people at that 5 point; is that a fair interpretation? 6 A: The -- the number was fluctuating, 7 yes. 8 Q: But there -- it wasn't just Bert 9 Manning who was cordial it was several people? 10 A: Bert Manning was cordial. 11 Q: Yes. 12 A: As I mentioned yesterday, at times 13 things were a little heated. 14 Q: Hmm hmm. 15 A: But Bert Manning was cordial to me. 16 Q: And there were others as well? 17 A: Yes. 18 19 (BRIEF PAUSE) 20 21 Q: If I could fast forward a little bit 22 now to the evening of September 4th and one (1) of the 23 things you talked about was flares being thrown at the 24 officers. 25 And one (1) of the things you mention in
201 your statement at Tab 13, and if you like I can take you 2 to it, is that you mentioned that they were strobe 3 flares. And if -- for your reference it's at page -- 4 strobe-type flares -- it's page 3 of your statement 5 Inquiry Document Number 2003606, Exhibit P-1393. 6 A: Yes. 7 Q: Do you see that, sir? 8 A: Yes. 9 Q: Could you please describe for me what 10 you meant by the term 'strobe-type flares'? 11 A: As I described yesterday the light 12 was very bright. It was white. It appeared to me to be 13 very hot and as it was -- as they were burning the light 14 was changing slightly. 15 Q: And where were you located when these 16 flares were thrown at you or thrown at the officers? 17 A: Distance? 18 Q: Yes. 19 A: Ten (10) to fifteen (15) metres. 20 Q: So you would have been ten (10) to 21 fifteen (15) metres away from it? 22 A: That's correct. 23 Q: Okay. And you also indicated that 24 they were small. Were they about the size of a water 25 bottle cap or a pop bottle cap? Would that be an
211 accurate description of their approximate -- approximate 2 size? 3 A: I believe they were bigger than that. 4 Q: Okay. But they just -- one (1) -- 5 one (1) of them simply just bounced off an officer so it 6 didn't -- didn't do -- it wasn't -- it just bounced in 7 that context, correct? 8 A: I don't know if it just bounced it 9 appeared to be -- yeah, intentionally thrown at the 10 officer. 11 Q: I believe your evidence from 12 yesterday was it just bounced off that officer? 13 A: That's what was the end result, it 14 bounced off of him. 15 Q: Is it possible that these were 16 firecrackers or fireworks and not necessarily flares? 17 A: I've never seen firecrackers like 18 that. 19 Q: Okay. We've heard evidence from 20 several of the occupiers who indicated that what they 21 threw was fireworks or firecrackers and -- but that 22 doesn't assist you with whether they were firecrackers or 23 fireworks? 24 A: That's not my recollection, no. 25 Q: Now, if I take you back to Tab 13 at
221 page 3, Inquiry Document Number 2003606, Exhibit P-1393, 2 it indicates that that evening at 21:23 hours, one (1) of 3 the things that Judas George screamed at you was, I told 4 you, get off my land. 5 So am I correct in interpreting that that 6 Judas George told you both at 16:00 hours and later that 7 evening to get off your land? 8 A: That's correct. 9 Q: Now, if I could take you to Tab 16 of 10 your binder and this is marked as region 4, conversation 11 between yourself and H. H. Graham -- the H. H. Graham at 12 20:04 hours which is Inquiry Document Number P-1396. 13 And I believe this is a phone call so we'd 14 have to add seven (7) minutes to that just for the record 15 in terms of when this actually occurred. 16 If I could turn you to page 3 of that 17 transcript. Do you see the second line? It says: 18 "WAYDE JACKLIN: But don't put it over 19 the air if you see any vehicles." 20 A: Yes, I see that. 21 Q: And I'm trying to understand what was 22 the concern about putting it over the air if you see any 23 vehicles. 24 A: I don't recall if there was a 25 concern.
231 Q: Could it have been that other people 2 may have been listening in including the occupiers? 3 A: That's always a possibility that 4 people can listen to our communications. 5 Q: I'm going to move on now to a little 6 bit later in the evening about the report of automatic 7 gunfire that you received from Constable Parks. 8 Now as I understand your evidence, your 9 role was simply to pass that information along to the 10 Incident Commander, correct? 11 A: That's my main role, yes. 12 Q: But as I read your evidence 13 yesterday, it seemed that there are issues with respect 14 to the report that you got from Constable Park in terms 15 of the accuracy; is that fair? 16 A: No. 17 Q: The reason why I say that is you 18 mentioned something yesterday about -- the question about 19 based on your experience and the amount of gunfire. 20 A: That's correct. 21 Q: So there seemed to -- and he said it 22 was fully automatic. So there were some issues that you 23 had to think about with respect to that based on your 24 experience, correct? 25 A: There was inferences that I drew
241 based on my experience, yes. 2 Q: Okay. And one of those inferences 3 was -- was with respect to the accuracy of the report? 4 A: No. 5 Q: No. 6 A: I had no reason to believe what he 7 was reporting was accurate (sic), if that's what you're 8 asking. 9 Q: Okay. But you simply passed that 10 information along? 11 A: And I asked him verifying questions. 12 Q: Hmm hmm. And did you pass any of 13 your inferences or what you interpret -- what you 14 inferred from the information to anyone else in the 15 Command Post? 16 A: I don't recall any specific 17 conversations on that, no. 18 Q: And if I take you to Tab 31 of your 19 binder, paragraph 3, this is the Affidavit you created 20 for the Court of Appeal case of Her Majesty the Queen 21 versus Ken Deane, Inquiry Document Number 2005327, 22 Exhibit P-1400. 23 COMMISSIONER SIDNEY LINDEN: What tab is 24 that again, Mr. Alexander? 25 MR. BASIL ALEXANDER: Tab 31.
251 (BRIEF PAUSE) 2 3 CONTINUED BY MR. BASIL ALEXANDER: 4 Q: At the very end of paragraph 3: 5 "I knew there was threats of firearms 6 from the Native occupiers because of my 7 own experience and because of previous 8 reports of firearms being discharged on 9 the Armed Forces Base." 10 Was this based partially or in whole or in 11 part on the information that you received from Constable 12 Parks that night? 13 A: No. 14 Q: No. So Constable Parks did not fill 15 in -- did not figure it in all with respect to this 16 statement in your Affidavit? 17 A: Oh I figured in, yes. 18 Q: So it -- 19 A: But that wasn't the only source. 20 Q: It wasn't the only source but it did 21 contribute to this statement? 22 A: Yes. 23 24 (BRIEF PAUSE) 25
261 Q: I want to move ahead now to September 2 the 6th. And as -- if I believe -- if I understand your 3 evidence correctly, you were stationed at Checkpoint 'C' 4 on the evening of September the 6th? 5 A: Yes, I was. 6 Q: And do you recall somebody coming in 7 and making a report about damage to their vehicle, 8 correct? 9 A: I do. 10 Q: Did you see the damage to the 11 vehicle? 12 A: I don't have any spec -- specific 13 recollection of the damage. 14 Q: We've had entered into evidence as 15 Exhibits P-474, Inquiry Document Number 1000448, and P- 16 475, Inquiry Document Number 1000888 a statement of Mark 17 Zacher and the notes of Mark Zacher. And he has some 18 notations regarding the damage and I want to see if it 19 refreshes your memory. 20 In the statement it says: 21 "His driver's side rear quarter panel 22 was damaged; I estimate about four 23 hundred dollars ($400) damage." 24 Does that refresh your memory at all about 25 where the damage occurred or the amount?
271 A: No. 2 Q: But you don't have a -- you don't 3 take any issue with Constable Zacher's comments about 4 that? 5 A: No. 6 7 (BRIEF PAUSE) 8 9 Q: Now, if I could take you to the 10 stapled loose leaf copy of the various transmissions that 11 were given -- that we went through yesterday they start 12 at Exhibit P-1401 and went through to P-1414 with other 13 exhibits in the middle. I'm not going to take you 14 through these I just have a very quick question about the 15 timing. 16 Do you have that, sir? 17 A: Which one are you referring to first? 18 Q: I believe it was just the stapled -- 19 A: September 6th? 20 Q: Yeah, the September 6th, for the 21 evening of September 6th? 22 A: Yes. 23 Q: Now, if I look at the timing of this 24 it appears to start at 20:36 or 8:36 p.m., and since 25 these are radio transmissions, or my understanding is
281 there's no changes to the time as a result, and end at 2 22:01 on the evening of September the 6th; that's P-1401 3 for the first one and P-1414 for the last one? 4 A: That's correct. 5 Q: Now, am I correct in inferring that 6 this represents the totality of those transmissions to 7 your knowledge for that evening with respect to what was 8 going on? 9 10 (BRIEF PAUSE) 11 12 Q: I'll -- I'll rephrase the question a 13 little bit better. My Friends have advised me that -- 14 advised me that re -- I phrased it a little bit bad. 15 These were the transmissions that you 16 would have been aware over the radio that evening, 17 correct? 18 A: While at Checkpoint Charlie? 19 Q: While at Checkpoint Charlie? 20 A: Yes. 21 Q: And these are the ones that talk 22 about with respect to whatever was going on and the 23 issues that were happening with respect to Checkpoint 24 Charlie, correct? 25 A: Correct.
291 Q: And -- but it all seems to start 2 around 20:36 that evening and then it all ends at 22:01. 3 So that seems to be the timeframe of when all of this 4 happened? 5 A: I don't know what time we actually 6 got to Checkpoint Charlie. 7 Q: Okay. But you have no reason to 8 doubt the accuracy of the times on these transmissions? 9 A: No. 10 Q: And are you aware of any other 11 transmissions that would have occurred at Checkpoint 12 Charlie that -- that are not included in this package 13 that you would have been aware of? 14 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 15 Jones...? 16 MS. KAREN JONES: Mr. Commissioner, we 17 have a large number of tapes or transmissions from the 18 logger that were transcribed in addition to this over 19 this period and were made exhibits. 20 If Mr. Alexander wants to take this 21 Witness through all of the transcripts that have been put 22 in his exhibits over that period he can comment on that, 23 but without having an opportunity to look at all of the 24 transcripts that have been made exhibits at the 25 proceeding I'm not sure how he can be of any assistance.
301 MR. BASIL ALEXANDER: I'm just trying to 2 get a sense of his information; that's all it is. And if 3 we can't -- if he can't give me that answer or if there's 4 an objection I can move on; that's not a problem with my 5 point. 6 COMMISSIONER SIDNEY LINDEN: Then move 7 on. 8 9 CONTINUED BY MR. BASIL ALEXANDER: 10 Q: Now, I want to move on briefly to the 11 incident that occurred on the evening of September the 12 6th. Now, if I understand your evidence correctly 13 because you part of the arrest team you would have had -- 14 you would have been behind the CMU, correct? 15 A: We were at the rear of the CMU,but we 16 are part of the CMU. 17 Q: I apologize, that was a bad choice of 18 wording. You would have been at the rear part of the CMU 19 so you would have seen the left, the middle and the front 20 parts of the crowd management unit in front of you, 21 correct? 22 A: They would be in front, yes. 23 Q: Okay. And you started moving down 24 the road in cordon form -- formation, but you couldn't 25 assist us with the number of police officers who were
311 involved at that point. 2 A: The total number, no. 3 Q: Okay. Can you give us an approximate 4 number? 5 A: Over thirty (30). 6 Q: Can I ask that Exhibit P-437B be put 7 on the screen? Would that be available? 8 9 (BRIEF PAUSE) 10 11 MR. BASIL ALEXANDER: I -- it's a map. 12 It's an electronic map. Sorry. 13 14 (BRIEF PAUSE) 15 16 MR. BASIL ALEXANDER: If we could wait a 17 minute. If we could wait a minute, Mr. Millar is, I 18 believe, going to assist us. 19 20 (BRIEF PAUSE) 21 22 CONTINUED BY MR. BASIL ALEXANDER: 23 Q: What Mr. Millar's put up on the 24 screen is a copy of P-437B, which has a copy -- and he 25 zoned -- he's zoomed in a little bit on a portion of it
321 which is the MNR parking lot as well as sandy -- as well 2 as the sandy parking lot, Army Camp Road and East Parkway 3 Drive. 4 Do you see that, sir? 5 A: Yes, I do. 6 Q: Okay. Now, the TOC, I believe -- the 7 evidence that we've heard is that the TOC was located at 8 the MNR parking lot, correct, and that's where the CMU 9 was forming up? 10 A: That's -- yeah, we formed up at the 11 TOC. 12 Q: Okay. So you would have had to go 13 down East Parkway Drive during that march, correct? 14 A: That's correct. 15 Q: And then during that march, you 16 indicated that there was a point where you were ordered 17 to split and you went on both sides of the road and you 18 took a knee. 19 A: That is correct. 20 Q: Looking at this map, do you have any 21 idea where that occurred? 22 A: No. 23 Q: No. The map doesn't assist you? 24 A: I'd be speculating where we stopped. 25 Q: Do you know about how long after you
331 started marching that you ended up doing that? 2 A: I don't know -- no. 3 4 (BRIEF PAUSE) 5 6 Q: I was -- I'm wondering if a copy of 7 Exhibit P-23 can be put beside the Witness? 8 9 (BRIEF PAUSE) 10 11 Q: This is a copy of a drawing prepared 12 by Stan Thompson in 1995 with respect to the actual 13 intersection of Army Camp Road and East Parkway Drive and 14 the sandy parking lot. 15 Now, Mr. Commissioner, I'm going to try to 16 go through this as quickly as I can. Now, when you 17 indicated when you approached the sandy parking lot as 18 part of the CMU, you indicated that you saw spotlights, 19 correct? 20 A: That's correct. 21 Q: Looking at this map, can you assist 22 us with respect to where those spotlights were? And 23 there's a laser pointer to your side which may be of 24 assistance to you. 25
341 (BRIEF PAUSE) 2 3 A: This is the Park fence here? 4 Q: I believe -- or my -- my 5 understanding is that is the Park fence, yes. 6 A: The -- the spotlights came from back 7 behind the fence area to the -- as you're looking at the 8 parking lot, they were to the right of the bus. 9 Q: There should be a black marker beside 10 you. Can you put an 'X' where you indicated that on the 11 map, please? 12 A: Well it's kind of general area 13 because the spotlights were kind of moving around. They 14 were behind the fence but they were -- they'd seemed to 15 be changing somewhat but -- do you want me to mark up but 16 it's be -- I know it was behind the fence in this area 17 here. 18 Q: All right. That -- that's fine. 19 What you seem to be indicating is, just for the record, 20 is to the right side of the map behind the fence just 21 where the trees -- where there's -- there's -- there's 22 about five (5) trees and you seem to be indicating in the 23 area behind the trees. 24 Is that a fair summary of what you've been 25 indicating with the laser pointer?
351 A: Yeah. And I don't recall like -- 2 those are trees. Like, they're not bushes they're -- 3 they're actual trees? 4 MS. SUSAN VELLA: The drawing isn't -- 5 isn't to scale. It's not precise. We believe those are 6 meant to indicate trees and bush -- 7 WITNESS: Right. 8 MS. SUSAN VELLA: -- in a very general 9 sense. It's not the precise number of trees behind the 10 fence. It's just a general area. 11 MR. BASIL ALEXANDER: All right. Thank 12 you, Ms. Vella, for that assistance. 13 MS. KAREN JONES: And Mr. Commissioner, I 14 -- I wonder if this Witness could be cautioned, because 15 as I -- my recollection is other witnesses have been, 16 that this is not a diagram that's to scale. 17 Mr. Alexander started off by saying this 18 is a drawing of the actual area. And of course, it is a 19 rough representation by someone. And this -- 20 COMMISSIONER SIDNEY LINDEN: You've -- 21 MS. KAREN JONES: -- Witness ought to 22 know that this isn't and doesn't seem to purport to be an 23 actual drawing of anything. 24 COMMISSIONER SIDNEY LINDEN: You've just 25 given him that caution, Ms. Jones. Thank you. Carry on.
361 2 CONTINUED BY MR. BASIL ALEXANDER: 3 Q: The second question was -- the second 4 part is that you indicated that there was a bus parked in 5 the Park with headlights shining -- shining out on the 6 CMU, correct? 7 A: That's correct. 8 Q: Can you indicate with the laser 9 pointer approximately where that was? 10 A: When I'm looking in the -- down the 11 road into the intersection, the bus was off to the right 12 hand side. Now, I'm not saying it's right there but it 13 was to the right as you're looking straight into the 14 parking lot. 15 Q: So you would have -- so it would have 16 been in a line with respect to East Parkway Drive; that's 17 where you would have seen the bus? 18 A: That would be accurate. 19 Q: And you indicated that you saw people 20 in the intersection, correct? 21 A: That's correct. 22 Q: Can you indicate with the laser 23 pointer where you saw people in the laser -- in the 24 intersection, please? 25 A: My recollection is they were in this
371 area here. 2 Q: And you're indicating a circular area 3 approximately just to the left of the trees or bush on 4 the map; is that fair, sir? 5 A: In front of, yes. 6 Q: In front. 7 A: My view was not great. What I've 8 referred to would be the center of the intersection. So 9 if that's here, it -- it could be here but it appeared to 10 me to be in the middle. 11 Q: And where were you, indicated, when 12 you made these initial observations, approximately on the 13 map? 14 A: And I don't recall the driveway but 15 we were -- I was back on East Parkway Drive. 16 Q: And you've indicated -- you pointed 17 laser pointer right underneath the word 'Parkway' on East 18 Parkway Drive; is that correct? 19 A: In that general area. 20 Q: Now, you indicated that the forward 21 elements went into the sandy parking lot, correct? 22 A: That's correct. 23 Q: Can you indicate on the map 24 approximately where the forward elements went into the 25 sandy parking lot?
381 A: Again from my vantage point, it's 2 difficult to tell, so it would be just -- I'd be 3 speculating. 4 Q: So you can't assist us with the map 5 in terms of where the -- in terms of where they went? 6 7 (BRIEF PAUSE) 8 9 A: In -- initially? Into the -- is this 10 where -- 11 Q: Yes, I'm going through -- I'm going 12 through the in -- I'm going through incident in order so 13 -- based on your evidence from yesterday. 14 A: I'm not -- I'm not sure how far they 15 went into the sandy parking lot. 16 Q: And then you indicated they starting 17 to withdraw in reverse, correct? 18 A: That is correct. 19 Q: And you indicate what -- at what 20 point they were withdrawing and reversing to, at what 21 point they stopped withdrawing and reversing to on the 22 map? 23 A: I believe we ended up back by -- back 24 in the -- back in the sandy parking lot towards the 25 pavement.
391 Q: Can you mark that area with an "X" 2 please? There should be a black marker beside you. 3 4 (BRIEF PAUSE) 5 6 Q: And can you put a number 1 beside 7 that please? And, Mr. Commissioner, I'd ask that this be 8 marked --- the map be marked as the next exhibit please? 9 THE REGISTRAR: P-1421, Your Honour. 10 11 --- EXHIBIT NO. P-1421: "Stan" Thompson drawing, 12 September 20, 1995, marked by 13 Wayde Jacklin, April 26, 14 2006. 15 16 COMMISSIONER SIDNEY LINDEN: I'm not sure 17 how helpful this is, Mr. Alexander. The Witness' 18 recollection of precise points is so vague that it's 19 difficult, I gather, for him to put the points on the 20 map. His verbal descriptions may have to do but I 21 appreciate your trying. If he can do it, fine. If he 22 could do it would be helpful but if he can't there's not 23 much we can do. 24 25 CONTINUED BY MR. BASIL ALEXANDER:
401 Q: And where were you located when you 2 noted, because I understand from your evidence that you 3 were -- that you -- you didn't really do any -- much 4 movement at this point, correct? 5 A: Well -- 6 Q: They were still -- you would have 7 still been located at -- on East Parkway Drive, correct? 8 A: That's correct. 9 Q: Okay. And can you mark with an 'X' 10 and a number 2 as to where you -- you believe you were 11 located? 12 MS. KAREN JONES: Mr. Commissioner, I -- 13 I echo your concerns about the -- 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MS. KAREN JONES: -- utility of this, but 16 if anything is to be made of this Witness' recollections 17 at all there -- there was a series of events that 18 happened over the course of the evening of September 6th 19 in the sandy parking lot. 20 COMMISSIONER SIDNEY LINDEN: Well -- 21 MS. KAREN JONES: And so in terms of 22 where he -- 23 COMMISSIONER SIDNEY LINDEN: Well -- 24 MS. KAREN JONES: -- was an exact moment, 25 if -- if there is anything to be made of this it will
411 have to be identified very precisely for this Witness 2 about what exact time Mr. Alexander is referring to. 3 COMMISSIONER SIDNEY LINDEN: Well, the 4 Witness' recollection is -- 5 MS. KAREN JONES: Or -- sorry, not -- not 6 -- exact time might not be the way to phrase it, but 7 what's going on at the time because a series of things 8 happened. 9 COMMISSIONER SIDNEY LINDEN: I'm just not 10 sure that his recollection is precise enough to allow his 11 marking it on a map would be of any assistance to us. 12 MR. BASIL ALEXANDER: Well -- 13 COMMISSIONER SIDNEY LINDEN: If it were 14 then I think this would be a productive exercise but if 15 it's not I don't see it's getting us anywhere. His 16 verbal descriptions, as vague as they are, may have to be 17 the best we can do. 18 MR. BASIL ALEXANDER: Well, I'll try to 19 focus on -- 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. BASIL ALEXANDER: -- the highlights 22 and see if he can assist us with some of the specifics 23 but I think the locations would be very important for. 24 COMMISSIONER SIDNEY LINDEN: If he can be 25 precise I realize it would be helpful but so far he's
421 been quite general and vague about precise locations. 2 MR. BASIL ALEXANDER: Just for the record 3 the Witness did mark with an 'A' and number 2 on the map 4 where he was located. 5 COMMISSIONER SIDNEY LINDEN: Well, I -- 6 MR. BASIL ALEXANDER: So just for the 7 record in terms of making sure the record is clear on 8 that. 9 COMMISSIONER SIDNEY LINDEN: Do you feel 10 you can mark that on the map where you just indicated 11 with -- 12 THE WITNESS: What I believe -- 13 COMMISSIONER SIDNEY LINDEN: -- some 14 degree of comfort? 15 16 THE WITNESS: What I believe that I 17 testified yesterday I was 30 to 50 metres from that 18 intersection. 19 COMMISSIONER SIDNEY LINDEN: Well -- 20 MR. BASIL ALEXANDER: And I'm not -- I'm 21 not disagreeing with that -- 22 COMMISSIONER SIDNEY LINDEN: Yeah. 23 MR. BASIL ALEXANDER: -- I'm trying to 24 determine on the map where that was. 25 MS. SUSAN VELLA: But that's the
431 difficulty with the map, it's not to scale. 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MS. SUSAN VELLA: He recalls it being a 4 certain number of metres. If we can now tell him where 5 that would be on the map, in terms of 30 to 50 metres, 6 then that would be helpful. 7 But that's the difficulty with using a map 8 that's not to scale. 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 11 (BRIEF PAUSE) 12 13 MR. BASIL ALEXANDER: And I'm prepare -- 14 all I was doing was simply noting for the record that he 15 didn't mark an 'X' and a 2 so -- 16 COMMISSIONER SIDNEY LINDEN: Yes. I'm 17 not sure he can make an estimate of 30 to 50 metres, was 18 it, on a map that's not done to scale. If he can, then 19 let him try. 20 MS. SUSAN VELLA: It would be -- it has 21 to be attached, that minimum, to a marker on the map, I 22 would think. And maybe the map could be explained in 23 terms of the -- where the driveways were, et cetera, 24 because I don't know if this Witness has seen this 25 before.
441 2 (BRIEF PAUSE) 3 4 MR. DERRY MILLAR: The actual -- the 5 drawing has a scaling on it, but it's on the right hand 6 side. 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. DERRY MILLAR: But it doesn't -- it 9 only shows a portion of the intersection so thirty (30) 10 to fifty (50) metres would probably be off this 11 particular map. 12 COMMISSIONER SIDNEY LINDEN: According to 13 the scale that's written on the front of the map. 14 MR. DERRY MILLAR: From the scale. 15 That's the problem. 16 COMMISSIONER SIDNEY LINDEN: Well, so, 17 I'm not sure that pursuing this precision with this 18 Witness is productive or helpful. 19 MR. BASIL ALEXANDER: There's two (2) 20 specific things I'm going to try and then if that's as 21 far as we go, that's as far as we go. 22 But again, just for the record, he is not, 23 just for the clarity of the record, there is no 'X' and 24 number 2 on the exhibit, in terms if -- if anybody's 25 looking at this down the road.
451 2 CONTINUED BY MR. BASIL ALEXANDER: 3 Q: Now you indicated that there was a 4 person down that you went -- that you and your team went 5 to arrest that evening, correct? 6 A: That is correct. 7 Q: Looking at the map, are you able to 8 identify with the location of where that person was? 9 10 (BRIEF PAUSE) 11 12 A: I believe in this area here. 13 Q: Can you mark that with an 'X' and a 14 2, please. 15 COMMISSIONER SIDNEY LINDEN: Perhaps it 16 would be useful if you verbalized what he's -- 17 MR. BASIL ALEXANDER: Oh, yes. 18 COMMISSIONER SIDNEY LINDEN: -- saying as 19 well. 20 21 CONTINUED BY MR. BASIL ALEXANDER: 22 Q: And for the record, Mr. Jack -- Mr. 23 Jacklin is marking -- if you can mark it first. 24 And for the record, you've put an 'X' and 25 a 2 in what appears to be the sandy parking lot right
461 between where it's got -- where it looks like if you were 2 to draw a line straight from the road going down to the 3 beach and the fence. 4 And then your team picked up this person 5 and carried this person to the rear of the CMU, correct? 6 A: To the location of the prisoner van, 7 yes. 8 Q: Looking at this map, are you able to 9 identify the location of the prisoner van? 10 A: Not precisely. It was -- it had 11 moved, I believe. It was following behind us so I don't 12 know specifically but it was on -- definitely on the left 13 hand side of East Parkway or on the north side of the 14 road. 15 Q: Was it near the sandy parking lot? 16 You currently have the laser pointer near the sand -- 17 near the sandy parking lot, or where the sand would 18 appear to be starting off the pavement. 19 20 (BRIEF PAUSE) 21 22 A: My recollection is and it doesn't 23 show on this map, there was a street sign down here. 24 Q: Hmm hmm. 25 A: We -- when we were at the prisoner
471 van, that street sign was in front of us. I don't know 2 how much that helps, but it was in front of us. 3 Q: Do you have any idea how many metres 4 you were from the street sign -- the van was from the 5 street sign? 6 A: I don't recall how far the van was 7 but when I stepped around the van and observed the bus 8 strike the sign, 20 to 30 metres. 9 Q: And moving ahead again a little bit 10 more into the school bus. You indicated you first saw 11 the school bus in the sandy parking lot, correct? 12 A: No. 13 Q: Where did you first see the -- where 14 did you first see the school bus? 15 A: ON the other side of that fence. 16 Q: Sorry, I'm not being clear with my 17 question. When the school bus came out into the CM -- 18 out, into the sandy parking lot, did you -- you've 19 indicated in your evidence that you did not see it come 20 through -- come across the fence, correct? 21 A: That's correct. 22 Q: Where did you first see the school 23 bus when it came out into the sandy parking lot? 24 A: The school bus was now inside the 25 sandy parking lot.
481 Q: Looking at the map, are you able to 2 identify where the school bus was? 3 A: I believe in that area there. 4 Q: Can you mark that area with an 'X' 5 and a 3 please. And for the record that's marked beside 6 the fence on the right side of the map. 7 Now in terms of the travel of the school 8 bus, you indicated it came forward for a certain portion 9 and then it swerved? 10 A: That's correct. 11 Q: And looking at the map -- and then it 12 continued after it swerved, correct? 13 A: Yes. 14 Q: Looking at the map are you able to 15 identify where the school bus continued to before it 16 stopped and began reversing? 17 A: I believe so. 18 Q: Okay. 19 A: My recollection is the officers dove 20 into this ditch in this area here. 21 Q: You're pointing to what appears to be 22 a ditch on the south side of East Parkway Drive? 23 A: That's correct. And again, if the 24 street sign was present, I would -- because it was in the 25 area of the street sign.
491 Q: Can you mark that area with an 'X' 2 and a 3 -- an 'X' and a 4 please? 3 A: Where I believe the street sign was? 4 Q: No. Where you believe the bus ended 5 up. 6 A: When it stopped? 7 Q: When it stopped. 8 A: It was down here. 9 Q: Oh, okay. I apologize. 10 MS. KAREN JONES: Mr. Commissioner, again 11 I'm sorry. This Witness has said in terms of a landmark 12 that he could use that there is a particular landmark and 13 he's -- it's not indicated on this map. He's talked 14 about the sign. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MS. KAREN JONES: And absent that, I 17 really question if this is going to be of any assistance 18 to you at all. 19 COMMISSIONER SIDNEY LINDEN: I'm not sure 20 either so, I mean -- 21 MR. BASIL ALEXANDER: I've only got one 22 or two further things to do -- 23 COMMISSIONER SIDNEY LINDEN: All right. 24 I can't see this Witness' evidence being precise enough 25 to be of any great value on a map it seems. Carry on.
501 2 CONTINUED BY MR. BASIL ALEXANDER: 3 Q: Are you able to -- you are able to 4 indicate though where you think the sign was? 5 A: I believe so. 6 Q: Can you mark that with an 'X' and a 7 4, please? And it's your understanding that the bus -- 8 and to be clear you've indicated, for the record, an area 9 just to the left of where the intersection -- where the 10 road apparently curves from Army Camp Road to East 11 Parkway Drive. 12 Now are you able to indicate, looking at 13 the map, where the bus stopped? 14 15 (BRIEF PAUSE) 16 17 A: I believe it travelled down probably 18 40 to 50 metres past the -- and maybe a little further 19 than that past that sign. 20 Q: Okay. 21 COMMISSIONER SIDNEY LINDEN: As Mr. 22 Millar said, if it was 40/50 metres, it might be off this 23 map and that's why it's difficult -- 24 MR. BASIL ALEXANDER: Yes. I'm not -- 25 COMMISSIONER SIDNEY LINDEN: -- to rely
511 on what he's putting on the map. 2 MR. BASIL ALEXANDER: Yes. Hence I'm not 3 -- hence I'm not asking to mark that on the map. 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 That's fine. 6 7 CONTINUED BY MR. BASIL ALEXANDER: 8 Q: Are you able to indicate for us on 9 the map approximately where you -- where the bus was when 10 you discharged the fogger through the back window? 11 A: What I can tell you is after it hit 12 the sign, it travelled probably 20 metres or so to get to 13 my location. Then I ran behind the bus discharging the 14 fogger as I ran for maybe another 30 metres my 15 recollection is, and then it stopped. 16 So I'm going to say from in about here 17 down the road that distance. 18 Q: And then the bus started reversing 19 and you heard the word 'gun', correct? 20 A: I did hear the 'gun' in that chain of 21 events, yes. 22 Q: Do you know approximately where the 23 bus was when you heard the word 'gun'? 24 A: I believe I testified yesterday I 25 wasn't sure if it was still moving forward, stopped or it
521 was in the process of reversing. 2 Q: And you also indicated that you saw 3 muzzle flashes from the ditch, correct? 4 A: That is correct. 5 Q: Looking at the map are you able to 6 identify the location of where those muzzle flashes would 7 have come from? 8 A: I believe in this area here. 9 Q: Can you mark that with an 'X' and a 10 5, please. 11 12 (BRIEF PAUSE) 13 14 Q: And for the record, you've indicated 15 just south of East Parkway Drive towards the left side of 16 the map. 17 18 (BRIEF PAUSE) 19 20 Q: Now, I only have one (1) other area 21 to briefly explore with you and if I could take you to 22 Tab 6 of your binder, which is Inquiry Document Number 23 2005593 marked as Exhibit P-1387. These are your notes, 24 correct? 25 A: That's correct.
531 Q: And if I could take you to what 2 appears to be -- what would be page 93 on September the 3 8th. 4 5 (BRIEF PAUSE) 6 7 Q: Do you have it, sir? 8 A: That is correct. 9 Q: I'm looking at the entry at 07:00 10 hours and I'm not sure of the -- of what it says. Can 11 you read that for me? 12 A: It says: 13 "Ipperwash debriefing. Talk with 14 Hoath." 15 Q: And who is Hoath? 16 A: He was Dr. Hoath. He was the Force 17 psychologist at the time. 18 Q: Hmm hmm. And what was this 19 debriefing? 20 A: It was a -- it was held in Petrolia 21 and it was more of a healing circle is what it was. 22 Q: So it was with -- it wasn't just you 23 who was at this debriefing? 24 A: That's correct. 25 Q: Who else was at this debriefing?
541 A: Our ERT team, and I don't know if 2 there was others. 3 Q: But primarily your recollection is 4 your ERT team? 5 A: That's my recollection. 6 Q: Now, when you say it's "your" ERT 7 team, do you mean your District ERT team. I'm sorry, I 8 forget what number -- 9 A: 1. 10 Q: -- it was. 11 A: 1 District. 12 Q: So was it just the 1 District ERT 13 team or was it more than that? 14 A: It could have been more than that. 15 Q: And do you recall what was discussed 16 at this debriefing? 17 A: No. 18 Q: No, okay. Thank you, Staff Sergeant, 19 those are my questions. 20 COMMISSIONER SIDNEY LINDEN: Thank you 21 very much. 22 23 (BRIEF PAUSE) 24 25 COMMISSIONER SIDNEY LINDEN: Yes, Mr.
551 Rosenthal...? 2 MR. PETER ROSENTHAL: Yes, sir. Good 3 morning, Mr. Commissioner. 4 COMMISSIONER SIDNEY LINDEN: Good 5 morning. 6 MR. PETER ROSENTHAL: Ms. Johnson has 7 requested that she go before me and I understand all 8 Aboriginal Counsel are accept -- find that acceptable and 9 I certainly do. I hope you do as well. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 Mr. Alexander doesn't usually exceed his estimates but in 12 this case he did by quite a bit. But I'm sure that that 13 wasn't planned that way, it just worked out. 14 Yes, Ms. Johnson...? 15 MS. COLLEEN JOHNSON: Good morning. 16 17 CROSS-EXAMINATION BY MS. COLLEEN JOHNSON: 18 Q: Good morning, sir. 19 A: Good morning, ma'am. 20 Q: My name is Colleen Johnson. I 21 represent the Kettle and Stony Point First Nation today 22 and I appear as agent for the Chiefs of Ontario. I also 23 represent individuals within that capacity, including Mr. 24 Cecil Bernard George. 25 I have just a few areas that I'll be
561 covering with you today. I will do my best to get 2 through them in a timely fashion. 3 COMMISSIONER SIDNEY LINDEN: No, that's 4 fine, that's fine. 5 6 CONTINUED BY MS. COLLEEN JOHNSON: 7 Q: Now, you've given evidence on 8 repeated occasions with regards the matters that were 9 discussing today. Would you agree with that? 10 A: Yes. 11 Q: And so initially, you gave a 12 statement, or you made a statement on the 7th of 13 September, I believe. And I believe that your statement 14 can be found at Tab 25 and it's Inquiry -- Exhibit P- 15 1415. You agree that that's your statement? 16 A: I do. 17 Q: And you've recounted in that 18 statement the events that included the injuries suffered 19 by Cecil Bernard George. Would you agree with that? 20 A: Yes. 21 Q: Okay. Now, you indicate on -- it's - 22 - it's actually page 2 of Tab 25, but it -- there's a 23 page 900 at the top of that. 24 A: I have it. 25 Q: Okay. And about a third of the way
571 down the page the sentence that starts or the line that 2 starts: 3 "It was after dark." 4 Do you see that? 5 A: Yes. 6 Q: And it indicates: 7 "I was at least 50 metres from the 8 intersection." 9 A: Yes. 10 Q: Just a bit farther down it indicates: 11 "None of our people had advanced to the 12 Park fence." 13 Do you see that section? 14 A: I do. 15 Q: You indicate a short time later: 16 "I noted several male Native Canadians 17 come out of the Park between Crowd 18 Control Unit and the arrest team I was 19 with. I recall one (1) Native Canadian 20 male on the intersection side of the 21 fence with a large stick in his hand." 22 Do you have that recollection today of the 23 large male? 24 A: Yes. 25 Q: Okay. Now, he was already on the
581 intersection side of the fence, is that agreed? 2 A: That's where I observed him, yes. 3 Q: Okay. Later in your statement you've 4 indicated that it was closer -- it was at least 30 metres 5 and this is the page with "902" at the top of it halfway 6 down. The line starts, "Believe", so just above it's: 7 "I believe it would be at least 30 8 metres from Ipperwash Park." 9 A: Yes. 10 Q: And yesterday I believe you agreed it 11 was between 30 and 50 metres, your distance? 12 A: That's correct. 13 Q: Would you agree that that's the 14 individual that you later saw laying on the ground? 15 A: I can't make that conclusion. 16 Q: All right. Now, you've indicated 17 that you knew there was an individual on the ground; is 18 that correct? 19 A: That is correct. 20 Q: And you've indicated that he was an 21 individual who was throwing rocks? 22 A: I don't believe I indicated that. 23 Q: Okay. Let's go to Tab 30 which is 24 your SIU statement. And I'm sorry, I need assistance 25 with regards to the exhibit number.
591 MS. SUSAN VELLA: It's not an exhibit. 2 MS. COLLEEN JOHNSON: It is Document 3 Number then -- do you have that? I assumed it was and I 4 just didn't have it. 5 COMMISSIONER SIDNEY LINDEN: No. 6 7 (BRIEF PAUSE) 8 9 CONTINUED BY MS. COLLEEN JOHNSON: 10 Q: Okay. Document Number 1004707? 11 A: Yes. 12 Q: And do you recall giving this 13 statement to the SIU? 14 A: Yes, I do. 15 Q: Okay. 16 17 (BRIEF PAUSE) 18 19 Q: And perhaps I'll just go through this 20 statement with you briefly. 21 You've indicated on page 4 that you don't 22 recall which officers were to your left or to your right 23 and I'm about two-thirds (2/3's) of the way down the 24 page. 25 And then you indicate that it was dark
601 outside, correct? 2 A: Yes. 3 Q: Okay. And can you go ahead and read 4 the next few lines on that page? 5 A: After, "Was it dark or light 6 outside"? 7 Q: Hmm hmm. 8 A: "It was dark. 9 Was any person arrested by the Crowd 10 Management Unit that night? 11 Yes. 12 What was the position of the arrested 13 person when the punchout occurred? 14 He was in front of our location within 15 the Crowd Management Unit and when I 16 first saw him, he would be 30 to 50 17 metres or further away from our 18 location." 19 Keep going? 20 Q: Please, and just the next answer. 21 A: "How close was the closest protester 22 to the Crowd Management Unit when the 23 punchout occurred? 24 I don't know." 25 Q: Okay. And -- I'm sorry, go ahead,
611 keep going. 2 A: "How far from the fence line was the 3 arrested person when contact was made? 4 It would be a guess on my part." 5 Q: Next? 6 A: "How many Natives did you see fall or 7 be overrun by the Crowd Management 8 Unit? 9 There was contact with other peoples. 10 Numbers, I have no idea." 11 Q: Now were you able to actually see the 12 contact with the other people? 13 A: Not very well, no. 14 Q: Can you indicate what exactly you 15 were able to see at that point? 16 A: My focus was drawn to the person on 17 the ground. 18 Q: Now, I'm asking you, prior to the 19 person being on the ground, what interaction were you 20 able to clearly see? 21 A: There was a number of skirmishes 22 going on in front of our location. 23 Q: Okay. Were you able to clearly see 24 any of the skirmishes? 25 A: Clearly, no.
621 Q: Now, you've indicated that there were 2 lights that were hindering some of what you were able to 3 see. Do you agree with that? 4 A: Much of what we were able to see, 5 yes. 6 Q: Okay. With regards to being able to 7 see the skirmishes were you able to identify who was 8 interacting in the skirmishes? 9 A: Absolutely not. 10 Q: Could you tell which ones were police 11 officers and which ones were not? 12 A: No. 13 Q: Were you able to actually see any 14 individuals throwing anything? 15 A: No. 16 Q: And we'll just continue on with that 17 statement for a few moments. And the question at the 18 middle of page that's numbered 6 in this Special 19 Investigation Unit Report. 20 "What position was the arrested person 21 in when you first observed him? 22 (standing prone)[is in parenthesis]." 23 Your answer is? 24 A: "On the ground." 25 Q: Okay. And go ahead and read the next
631 question and answer please. 2 A: "Was the arrested person armed with a 3 weapon when you first observed him? 4 I did not observe any weapon." 5 Q: Okay. And the next question. 6 A: "Based on your observations of the 7 arrested person's behaviour at the time 8 you first observed him, would you 9 profile him using the use of force 10 model?" 11 Q: And your answer? 12 A: "When I first observed him it was at 13 a distance. I made no conclusion at 14 that point." 15 Q: All right. Now, I'm just going to 16 ask you to go back to Tab 25 and it's page 901 at the -- 17 is the number at the top of that page. 18 Now, I'm sorry to be jumping around. It-- 19 COMMISSIONER SIDNEY LINDEN: I'm sorry. 20 MS. COLLEEN JOHNSON: -- I had a page 21 missing on this -- 22 COMMISSIONER SIDNEY LINDEN: On the 23 statement? 24 MS. COLLEEN JOHNSON: Yes. But I pulled 25 it from another place so it's just in my notes it's a
641 little confused. 2 COMMISSIONER SIDNEY LINDEN: All right. 3 So the one you're looking at now is nine-o-one (901)? 4 MS. COLLEEN JOHNSON: Yes. 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 MS. COLLEEN JOHNSON: On his statement. 7 8 CONTINUED BY MS. COLLEEN JOHNSON: 9 Q: And you've indicated about a quarter 10 of the way down the sentence starts "The lead element". 11 A: Yes. 12 Q: Could you read that please? 13 A: "The lead element apprehended one (1) 14 mail Native that had been throwing 15 rocks." 16 Q: Okay. Now you've indicated clearly 17 that he was throwing rocks; is that correct? 18 A: No. That was my conclusion. That 19 was a -- 20 Q: Can you tell me more about that? Did 21 you see him actually throwing rocks? 22 A: No. 23 Q: Okay. You assumed that he had been 24 throwing rocks? 25 A: That's right. That's my assumption.
651 Q: Okay. So what did you actually see 2 with regards to that individual? 3 A: I've told you. 4 Q: Tell me again. 5 A: When I saw him he was on the ground. 6 Q: You don't know if you ever saw him 7 before you seen him on the ground; is that correct? 8 A: That's correct. 9 Q: Okay. Would you agree that you have 10 no idea as to what happened to him prior to you seeing 11 him on the ground? 12 A: Correct. 13 Q: What you saw was a snapshot? 14 A: That's fair. 15 Q: Now, if we can go back -- well, hang 16 on a second, just so you don't have to jump around. 17 You've indicated and you testified 18 yesterday that you moved forward to take control of the 19 male party and he was carried back and those kinds of 20 things. 21 A: Yes. 22 Q: If you could go to the bottom of page 23 901, about six (6) lines up from the bottom it starts 24 with "mouth area". I noted -- well, we'll go a bit 25 farther.
661 "I noted that his lips were cut and he 2 was bleeding in the mouth area." 3 Do you see that line? 4 A: Yes. 5 Q: Okay, and can you go ahead and read 6 the next sentence? 7 A: "I am not aware of how he received 8 those injuries. Projectiles were still 9 be hurled at our unit." 10 Q: Okay. Now you make those -- that 11 comment actually as one (1) sentence. 12 A: Is -- 13 Q: Would you -- were you saying that 14 perhaps he received those injuries from the projectiles 15 being hurled? 16 A: There's a possibility. 17 Q: Okay. 18 19 (BRIEF PAUSE) 20 21 Q: Now you've indicated that he was 22 kicking and flailing and I'm at the SIU report, but I 23 think that you've indicated throughout that -- and within 24 this report that he was kicking violently, those kinds of 25 things.
671 Do you stand by that assessment of what he 2 was doing when you first saw him on the ground? 3 A: Absolutely. 4 Q: Okay. And at one point you indicated 5 that there was an officer near him, do you agree? 6 A: That's correct. 7 Q: Okay. That actually kicked him. 8 A: I did observe an officer kick, yes. 9 Q: Okay. 10 11 (BRIEF PAUSE) 12 13 Q: I'm going to ask you to go Tab 28 and 14 this is Exhibit number P-1419. I'm sorry, I'm at Tab 27. 15 16 (BRIEF PAUSE) 17 18 Q: And this would be a transcript of 19 your evidence in the case of Regina vs. Cecil Bernard 20 George. Would you agree with that? 21 A: Yes. 22 Q: And it starts with your examination 23 in-chief on a page that's numbered at the time two 24 hundred (200) -- or in the document, two hundred and 25 ninety-five (295).
681 Do you agree? 2 A: Yes. 3 Q: Okay. And I'm going to ask you to 4 flip through to page 300 of that document, or the page 5 numbered 300. 6 7 (BRIEF PAUSE) 8 9 Q: Now the question is put to you: 10 "When you arrived at that person's 11 location what was going on?" 12 And that's the first question on that 13 page. 14 A: Yes. 15 Q: And can you read that answer for us, 16 then? 17 A: "There was part of the element, part 18 of the CMU unit was beyond him. At 19 this point, he was down on the ground. 20 He was kicking and whatnot. There was 21 a couple of crowd management guys 22 around him..." 23 Q: Okay. If we'll -- if you can just 24 stop there. So you've said that there was one (1) 25 individual there.
691 A: Yes. 2 Q: And that he actually kicked Cecil 3 Bernard George, who you later came to know was Cecil 4 Bernard George, laying on the ground. 5 A: I haven't said that yet, no. 6 Q: Prior -- but in earlier testimony, 7 you've said that there was one (1) officer. 8 A: That's correct. 9 Q: And he had been kicked; is that 10 right, according to your testimony? The officer -- 11 A: That's possible. 12 Q: I'm sorry, I thought that you had 13 said that. That's fine. 14 Okay, but you saw the officer kick Cecil 15 Bernard George? 16 A: Yes. 17 Q: Okay. And then in this testimony 18 you're indicating there were a couple of Crowd Management 19 guys around him. 20 A: That's correct. 21 Q: Okay. Now if you can just think 22 back, do you have a clear recollection of that evening, 23 of -- 24 A: It -- 25 Q: -- Cecil Bernard George on the
701 ground? 2 A: I'm very clear he was on the ground, 3 yes. 4 Q: Okay. Do you have a clear 5 recollection of who the officers are around him? 6 A: Absolutely not. 7 Q: I'm sorry, of the number of officers 8 around him? 9 A: My recollection is there were 10 several. 11 Q: Several? 12 A: Several. 13 Q: Okay. Could you be more specific? 14 A: No. 15 Q: More than one (1)? 16 A: I believe more than one (1), yes. 17 Q: More than two (2)? 18 A: That I'm not sure. 19 Q: So at least two (2)? 20 A: I believe so. 21 Q: Up to how many? 22 A: I told you I don't know. There was 23 several. 24 Q: Were there more than 5? 25 A: I think I've already answered that
711 question. 2 COMMISSIONER SIDNEY LINDEN: He said he 3 doesn't know. More than two (2) or I think he said more 4 than two (2). 5 THE WITNESS: I don't know if there was 6 more than two (2). There was -- 7 COMMISSIONER SIDNEY LINDEN: No, you 8 don't even know more than two (2). All right, that's 9 fine. 10 THE WITNESS: There was at least two (2). 11 12 CONTINUED BY MS. COLLEEN JOHNSON: 13 Q: So at least two (2) up to a hundred 14 (100)? 15 COMMISSIONER SIDNEY LINDEN: Well, I'm 16 not sure if he can say more. He can't say. 17 MS. COLLEEN JOHNSON: I'm -- 18 COMMISSIONER SIDNEY LINDEN: He said 19 several. I would have assumed that several is more than 20 two (2) but that's about as far as you can go. 21 MS. COLLEEN JOHNSON: I understand, sir, 22 but if he's got a clear recollection it makes sense -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MS. COLLEEN JOHNSON: -- that he would be 25 able to think of that.
721 COMMISSIONER SIDNEY LINDEN: It might. 2 You can make that argument. It... 3 4 (BRIEF PAUSE) 5 6 CONTINUED BY MS. COLLEEN JOHNSON: 7 Q: All right. Go ahead then. And you 8 indicate in your answer there it says: 9 "When I got forward they had actually 10 stepped beyond him when we got in 11 there." 12 Do you see that part? 13 A: Is it the same paragraph? 14 Q: Hmm hmm. It's right after where you 15 stopped. 16 A: "When I got forward" 17 Do you want me to read it? 18 Q: No, that's okay, I just read that 19 part. Go ahead and read the next sentence. 20 A: So as far as contact at that point I 21 didn't see any contact between the guy 22 on the ground and our CMU unit. He was 23 kicking and the guys that were standing 24 there were being kicked and whatnot. I 25 think the one (1) guy on the one (1)
731 side had kicked back. As soon as we 2 got in there and got a hold of him they 3 just moved forward. In fact you have 4 to get physical when you're in there 5 with our own people as far as moving 6 them back because of the confusion." 7 Q: Okay. Now, you've agreed that you 8 did not see what happened to Cecil Bernard George prior 9 to that point; is that correct? 10 A: That's correct. 11 Q: And you see him and you assume that 12 he's resisting arrest; is that correct? 13 A: That was my conclusion. 14 Q: At that point was he able to stand 15 physically? 16 A: I can't make that conclusion. 17 Q: As you came to examine his injuries 18 and interact with him did he have the physical ability to 19 stand? 20 COMMISSIONER SIDNEY LINDEN: I don't see 21 how this Witness would say whether he had a physical 22 ability to stand. He could say he didn't see him 23 standing. 24 MS. COLLEEN JOHNSON: They carried him to 25 the van.
741 COMMISSIONER SIDNEY LINDEN: Yes, yes, 2 that's fine. You're going to -- 3 MS. COLLEEN JOHNSON: And then they 4 carried him and put him in and then they sent him to a 5 hospital. 6 COMMISSIONER SIDNEY LINDEN: I don't know 7 just what this Witness could say about his physical 8 ability, that's all. They did carry him -- 9 10 CONTINUED BY MS. COLLEEN JOHNSON: 11 Q: At any point did -- 12 COMMISSIONER SIDNEY LINDEN: -- according 13 to his testimony. 14 15 CONTINUED BY MS. COLLEEN JOHNSON: 16 Q: -- the individual make any attempts 17 to stand? 18 A: Not that I'm aware of. 19 Q: Not during the entire time you 20 interacted with him? 21 A: That's correct. 22 Q: At any point did he make any attempts 23 to sit up? 24 A: I didn't have that observation. 25 Q: While you were with him did you
751 observe him at any point attempt to sit up? 2 A: No, I did not. 3 Q: While you were with him did you 4 observe him to do anything other than to remain in a 5 lying down position? 6 A: He -- in -- my impression was that he 7 was resisting from the -- 8 Q: That's fine. 9 COMMISSIONER SIDNEY LINDEN: You have to 10 give the Witness a chance to finish his answer. 11 MS. COLLEEN JOHNSON: He has to answer my 12 question. 13 COMMISSIONER SIDNEY LINDEN: No, but he 14 has to finish the answer that -- 15 MS. COLLEEN JOHNSON: All right. 16 COMMISSIONER SIDNEY LINDEN: You asked 17 him a question -- 18 MS. COLLEEN JOHNSON: Okay. 19 COMMISSIONER SIDNEY LINDEN: -- if he's 20 finished then you ask him another question. Were you 21 finished answering? I -- 22 THE WITNESS: No, sir. 23 COMMISSIONER SIDNEY LINDEN: -- couldn't 24 tell. Do you want to -- 25
761 CONTINUED BY MS. COLLEEN JOHNSON: 2 Q: Okay. Go ahead then. 3 A: I had stepped forward -- 4 Q: Hmm hmm. 5 A: -- of the person on the ground so I 6 had limited contact 7 Q: Hmm hmm. 8 A: -- and limited visibility with the 9 person on the ground as I was acting as I said yesterday 10 as a shield for our members and the person on the ground 11 because at that time there was a firestorm of rocks -- 12 Q: Hmm hmm. 13 A: -- and pipes. I had limited 14 visibility of him as I was trying to protect everybody 15 there. 16 Q: From the time that you saw him lying 17 on the ground through to the last time you saw him being 18 in the van did you at any point see him do anything other 19 than -- what -- at any point attempt to get into any 20 position other than a lying down position? 21 A: At that time he was -- had been 22 restrained, so no. 23 Q: If I indicated to you, at the 24 hospital, Dr. Marr's testimony included that he had 25 received numerous blunt trauma force injuries, would you
771 have any knowledge as to whether you would -- would you 2 be able to agree or disagree with that? 3 A: I have no idea what the doctor -- 4 Q: That's fine. If, and I'm going to 5 put this to you, if he had received numerous blows to his 6 body would you agree, looking at that snapshot, the 7 snapshot that you saw of him laying on the ground, 8 kicking and flailing, that it might have been protective 9 of himself; an attempt to keep blows away from him? 10 A: I can only tell you what I observed 11 and what I did. 12 Q: You observed him laying on the 13 ground, kicking and thrashing. 14 A: My interpretation was that he was 15 violently resisting arrest. 16 Q: Yes. That was your interpretation. 17 A: That's what I -- yes. 18 COMMISSIONER SIDNEY LINDEN: That's all 19 he can testify to, his interpretation. 20 21 CONTINUED BY MS. COLLEEN JOHNSON: 22 Q: Is it open to you that there could 23 have been another explanation for what he was doing at 24 that point is that -- is that a possibility in your mind? 25 A: That's -- that was -- the only thing
781 in my mind at that time that he was resisting. 2 Q: I understand that. But today, if I 3 put to you that he had received numerous blows, was his 4 behaviour consistent with an individual trying to not 5 receive more blows? 6 A: That -- again I -- my -- my 7 observation was that he was resisting arrest and what 8 else could have been happening, I can't speculate on 9 that? 10 Q: Okay, that's fair. So something else 11 could have been going on that you weren't aware of? 12 A: I can only tell you what I saw and 13 what I did. 14 Q: Thank you. I'm not asking for -- 15 COMMISSIONER SIDNEY LINDEN: That's fine. 16 MS. COLLEEN JOHNSON: -- anything more. 17 18 CONTINUED BY MS. COLLEEN JOHNSON: 19 Q: So you agree that you never saw him 20 throw any rocks? 21 A: True. 22 Q: You never saw him until the point 23 where he was laying on the ground? 24 A: Yes. 25 Q: To your knowledge? I mean, if you
791 saw him earlier, you wouldn't have been able to identify 2 him? 3 A: No. 4 Q: Okay. And you only saw one (1) 5 unknown officer kick him; is that correct? 6 A: I did see, yes. 7 Q: Now, you indicated that there were 8 numerous things going on, numerous interactions going on 9 around you; is that correct? 10 A: That's fair. 11 12 (BRIEF PAUSE) 13 14 Q: With regards to the officers in the 15 midst of the conflicts around them, you indicated in your 16 testimony here that sometimes you have to get physical 17 when you're in there with our own people as far as moving 18 them back, because of the confusion. 19 A: Yes. 20 Q: Tell me about the state of mind of 21 the officers in that situation? 22 COMMISSIONER SIDNEY LINDEN: I'm not sure 23 that's a question that he can answer; the state of mind 24 of other officers. He can testify to his own state of 25 mind.
801 2 CONTINUED BY MS. COLLEEN JOHNSON: 3 Q: I think he has testified to his own 4 state of mind, but go ahead and tell -- your concerns at 5 that point in time, you would agree, I believe, were for 6 the protection of the people around and to get him out of 7 there; is that correct? 8 A: That's correct. 9 Q: People who were around you who did 10 not have the goal of simply arresting him and getting him 11 out of there, the other members of your unit who were not 12 with the arrest unit per se, what kind of actions did you 13 see them carrying out? 14 I mean they're not calm around you; is 15 that correct? 16 A: I believe I described there was a 17 number of violent situations taking place. My focus was 18 on one, and that's where I was focussed. 19 Q: So you focussed the entire time on 20 him and didn't recollect seeing anything else going on 21 around you? 22 A: It was a -- as I described, there was 23 a tremendous amount of rocks, a lot of pipes and a lot of 24 other skirmishes going on. Yes, my focus was very 25 specific on the task that we had.
811 Q: When did the rocks start falling? I 2 know you're referring to your notes but do you have a 3 reco -- a clear recollection of that? 4 A: I -- I just want to .- is .- 5 Q: It's fine to refer to your notes. I 6 just want to know if you have an independent recollection 7 of that. 8 A: Yes. 9 Q: Okay. 10 COMMISSIONER SIDNEY LINDEN: I'd like to 11 take a break some time, Ms. Johnson, but I don't want to 12 interrupt you so is it possible that -- 13 MS. COLLEEN JOHNSON: Shortly. 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 Then we'll wait until -- 16 MS. COLLEEN JOHNSON: I'll come to a 17 point where we could break. 18 COMMISSIONER SIDNEY LINDEN: That's fine 19 20 (BRIEF PAUSE) 21 22 CONTINUED BY MS. COLLEEN JOHNSON: 23 Q: When did -- when did the rocks start 24 falling around you? 25 A: After the -- the officers had went
821 forward, the lead elements when we first arrived, when 2 they moved into the intersection as we were withdrawing. 3 We came under a barrage of rocks. 4 Q: Okay. So it's at the withdrawal that 5 the rocks start being thrown? 6 A: That's my recollection, yes. 7 Q: All right. And I'm just going to ask 8 you to look at one more thing and then we'll take a break 9 and then we'll resume afterwards. 10 If you could look at Tab 28, which is 11 Exhibit P-1420. And I believe that this is your -- a 12 transcript of your evidence in the case of Regina versus 13 Warren Anthony George. 14 And if you could look at page 65 of that 15 document. And there's an answer. 16 "Other CMU members. 17 And then a question: 18 "What were they doing and what was that 19 person -- what was the person down, 20 I'll refer to him as the Native..." 21 And then you go ahead and begin your 22 answer. 23 If you could look down in that answer, 24 it's line 15 along the left hand side and begin -- read 25 that sentence that starts with 'when'.
831 A: "When I got up there, there was an 2 officer over the top of the man. I 3 pushed him aside and moved forward of 4 the -- [it means officer] or the man on 5 the ground to act as a protective 6 shield. 7 And the other guys on the arrest team 8 were trying to control -- trying to 9 take control of him at that time." 10 Q: Okay. Do you remember indicating at 11 that proceeding that there was an officer over top of the 12 man? 13 A: That's right. 14 Q: Okay. And can you tell me about 15 that? Your recollection of that officer and what 16 position he was in. 17 A: I've already referred to several 18 officers there. That's where the officers were, they 19 were at the person on the ground. So when I refer to 20 over top of him that's referring to one of those officers 21 that were there. 22 Q: Yesterday My Friend asked you: Was 23 there an officer on top of the man? And you indicated, 24 No. 25 A: That's true.
841 Q: This is a different description over 2 top of the man. Can you just clarify for us what that 3 means? 4 A: A person's on the ground and I'm 5 standing up beside you. I'm overtop of you. 6 Q: Does it include bending over him? 7 A: It could. 8 Q: Do you recall that individual? Do 9 you have recollection independently of that situation? 10 Take your time to think about it. 11 A: The officers were trying to gain 12 control of that individual, which would require some 13 bending, obviously, to do that, yes. 14 Q: So you recall an officer bending over 15 top of the individual on the ground? 16 A: I recall an officer being over top of 17 him. What his body position at the time was, I don't 18 know the specifics of his body position. 19 Q: They're your words. I'm just asking 20 you to clarify them. 21 A: I am. That's my recollection, yes. 22 Q: This would be a good time for a -- 23 COMMISSIONER SIDNEY LINDEN: How much 24 longer do you think you might be? 25 MS. COLLEEN JOHNSON: Perhaps twenty (20)
851 minutes. 2 THE REGISTRAR: This Inquiry will recess 3 for fifteen (15) minutes. 4 5 --- Upon recessing at 10:34 a.m. 6 --- Upon resuming at 10:53 p.m. 7 8 THE REGISTRAR: This Inquiry is now 9 resumed. Please be seated. 10 11 (BRIEF PAUSE) 12 13 MS. COLLEEN JOHNSON: Perhaps it would 14 make sense to make a Special Investigations Unit 15 interview an exhibit at this time. 16 COMMISSIONER SIDNEY LINDEN: Yes, I think 17 it would. 18 THE REGISTRAR: P-1422, Your Honour. 19 20 --- EXHIBIT NO. P-1422: Document Number 1004707. SIU 21 interview with Wayde Jacklin, 22 April 01, 1998. 23 24 COMMISSIONER SIDNEY LINDEN: What Tab was 25 it again, 28? No, it was 30.
861 MS. SUSAN VELLA: 30. 2 COMMISSIONER SIDNEY LINDEN: It was 30. 3 MS. SUSAN VELLA: Tab 30 and it's Inquiry 4 document 1004707. 5 COMMISSIONER SIDNEY LINDEN: Right. And 6 what number was it again? 7 THE REGISTRAR: 1422, Your Honour. 8 COMMISSIONER SIDNEY LINDEN: 1422, thank 9 you. 10 11 (BRIEF PAUSE) 12 13 CONTINUED BY MS. COLLEEN JOHNSON: 14 Q: After taking the individual who was 15 later identified as Cecil Bernard George, or after your 16 officers were able to pick him up, you then retreated 17 with them towards the van that you had there; is that 18 correct? 19 A: That is correct. 20 Q: Okay. You were not actually holding 21 that individual; is that correct? 22 A: I don't believe so. 23 Q: Okay. And do you recall if you were 24 facing towards him? I assumed the officers were running; 25 is that correct?
871 A: Yes. 2 Q: Okay. And you were running along 3 with them, correct? 4 A: Yes. 5 Q: And you were -- were you at the foot 6 area of -- were his feet pointed towards the Park and his 7 head was pointing in the direction that they were going, 8 or was it turned around; do you recall? 9 A: I don't recall. 10 Q: Okay. Do you recall what your 11 position was in relation to the officers and the 12 individual? 13 A: I believe I was on the right side. 14 Q: Okay. So you were running along the 15 right side? 16 A: That's my recollection, yes. 17 Q: And were you facing the direction you 18 were running, or were you kind of running backwards? 19 A: No, I was running forwards. 20 Q: Okay. At any time after you had him 21 in your care and control, after the officers had picked 22 him up, did you see any projectiles strike him? 23 A: No. 24 Q: Would you have seen if a projectile 25 have struck -- stricken him?
881 A: No. 2 Q: Did you hear him holler out? 3 A: No. 4 Q: Did you hear any of your officers 5 holler out? 6 Q: Do you believe that any of them were 7 stricken by any projectiles? 8 A: I don't know. 9 Q: Did you have any information that 10 they were? 11 A: No. 12 Q: Is that likely to be information that 13 you would have had, if they had been stricken by a 14 projectile? 15 A: If they had been stricken -- I don't 16 know if they would have known they were at that time. 17 Q: Later, would that information likely 18 have come to your attention? 19 A: Not necessarily, no. 20 Q: You were not stricken by any 21 projectiles; is that correct? 22 A: I believe I was. 23 Q: Okay. Did you suffer any injuries 24 with regards to those? 25 A: No.
891 Q: Okay. Where do you believe you were 2 stricken? 3 A: I believe I was struck in the helmet, 4 I believe. 5 Q: Okay. Did you see Mr. George's face 6 when he was first on the ground? 7 A: When I -- when I first went to where 8 he was? 9 Q: Prior to him being picked up. 10 A: No. 11 Q: Did you see blood on him prior to him 12 being picked up? 13 A: I didn't observe his face. 14 Q: When you observed him afterwards -- 15 and I'm at the Special Investigation Unit Report. You 16 indicated these issues a number of times, simply what I 17 have in front of me. It's page 8 of that report. 18 And you're questioned as to what injuries 19 did you observe. Down at the bottom, I'm sorry, the 20 second to the last question asked. It's the last answer 21 you give. 22 A: Yes. 23 Q: Can you read your answer for us 24 please? 25 A: "I observed swelling to his face, I
901 believe he was cut around the lip area. 2 Those are the ones I observed." 3 Q: Okay. Keep going. 4 A: "He had clothes on and I didn't take 5 his shirt off." 6 Q: Okay. And then on page 9 of that the 7 question is asked of you: 8 "What caused the injuries you 9 observed?" And you indicate what? 10 A: "I have no idea." 11 Q: Okay. Later, halfway down the page, 12 the question is put to you: 13 "Did you receive any injuries during 14 the confrontation with the Natives?" 15 And you answer: 16 "No." 17 Is that correct? 18 A: That's correct. 19 Q: Okay. Would you agree that it's not 20 likely that he received his injuries from the projectiles 21 being thrown while you were carrying him? 22 A: I can't make that conclusion. 23 Q: I didn't ask you to conclude. I said 24 would you agree it's not likely? 25 A: It's -- it would be unlikely, yes.
911 Q: Thank you. Farther down the page, 2 the second to the last question again: 3 "Was the prisoner conscious when you 4 examined him at the prisoner van." 5 Can you read your answer for us there 6 please? 7 A: "No. He didn't appear to be. He 8 appeared to move -- or be more still 9 when we got him to the prisoner van. 10 He was moaning, but as far as talking I 11 don't remember him saying anything." 12 Q: Do you agree that he was not 13 conscious when you got him to the van that time? 14 A: I -- I did a real quick cursory 15 check. He -- whether he was conscious or not I -- my 16 level of expertise in that area, I don't know if he was 17 or not. 18 Q: That's fair. He was moaning, not 19 speaking. 20 A: That's correct. 21 Q: He may have been, would you agree, in 22 and out of consciousness? 23 A: I can't make that conclusion either. 24 Q: And you can't conclude as to whether 25 he was conscious or not?
921 A: That's correct. 2 Q: Would you agree that his -- that he 3 appeared to be in fairly severe trouble? 4 A: My conclusion was that a prisoner in 5 my care, the prudent thing was to get him medical 6 attention. 7 Q: Thank you. 8 A: Which I did. 9 Q: That's fine. If I might just have 10 your indulgence. 11 12 (BRIEF PAUSE) 13 14 Q: You've given a fair bit of testimony 15 over the past day, and it's clear that you take your 16 responsibility seriously as an officer; would you agree? 17 A: Absolutely. 18 Q: And that would include 19 responsibilities not to -- just to your brother officers 20 and sister officers but also to the people that you 21 serve? 22 A: I am sworn to protect and help the 23 people in this Province, absolutely. 24 Q: Okay. And I think it's been pretty 25 clear that those are your priorities. You do, however,
931 have an obligation to your brother officers out of 2 concern for them; is that correct? 3 A: No, I do not. In -- in what context? 4 Q: As people who you're close to and who 5 you work with on a day-to-day basis. 6 A: If you could form it in a word of a 7 question I would gladly answer it. 8 Q: Okay. And again I'm sorry but My 9 Friend would have to assist me with this. I'm looking at 10 the extra notes, the logger tapes and it's tape number 2 11 and it's a conversation between Wayde Jacklin and Stan -- 12 and Stan Korosec from September 1995 -- September 5th, 13 I'm sorry at 23:32 hours. I believe it's been made an 14 exhibit I just don't have the exhibit number. 15 16 (BRIEF PAUSE) 17 18 Q: Perhaps while My Friend's getting 19 that -- 20 COMMISSIONER SIDNEY LINDEN: Is it in the 21 book of tabs? Is it in the book of documents? 22 MS. COLLEEN JOHNSON: No, it was in -- it 23 was in the logger tapes that were provided as extra 24 material. 25 COMMISSIONER SIDNEY LINDEN: If we can
941 just find it so the Witness can look at it. 2 3 (BRIEF PAUSE) 4 5 CONTINUED BY MS. COLLEEN JOHNSON: 6 Q: I'll just -- it's a very short 7 portion that I'm going to read to him. And you testified 8 about this yesterday and it's a conversation between you 9 and Stan Korosec and he's apparently been woken up and so 10 he's groggy. 11 A: Yes. 12 Q: Do you recall that conversation? 13 A: I do. 14 Q: Okay. And he indicates -- 15 MS. KAREN JONES: Mr. Commissioner, if I 16 can help it is in the Officer's book I believe at Tab 20 17 and it is Exhibit P-1154. 18 MS. COLLEEN JOHNSON: Thank you very 19 much. 20 COMMISSIONER SIDNEY LINDEN: Sorry at Tab 21 20 did you say, Ms. Jones? 22 MS. KAREN JONES: If I -- I believe so -- 23 MS. SUSAN VELLA: That's not the one. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MS. COLLEEN JOHNSON: I don't -- I don't
951 have this. 2 THE WITNESS: That -- that's the one I 3 have. 4 MS. SUSAN VELLA: No, but that's not... 5 6 (BRIEF PAUSE) 7 8 COMMISSIONER SIDNEY LINDEN: It's not 9 that one? 10 MS. COLLEEN JOHNSON: Oh, maybe it is. 11 COMMISSIONER SIDNEY LINDEN: I think it 12 is that one. 13 MS. COLLEEN JOHNSON: I think -- I'm 14 sorry, I apologize, My Friend's correct. 15 COMMISSIONER SIDNEY LINDEN: I think so. 16 MS. COLLEEN JOHNSON: Yes, it is. That 17 makes it very simple -- 18 COMMISSIONER SIDNEY LINDEN: It's P-1154. 19 It's in Tab 20. It's -- 20 MS. COLLEEN JOHNSON: I apologize. 21 22 CONTINUED BY MS. COLLEEN JOHNSON: 23 Q: You have that in front of you, sir? 24 A: I do. 25 Q: Okay. And at page 3 of 4, we
961 reviewed that yesterday, there are comments made by Stan 2 Korosec with regards to: 3 "Well, live and learn. Live and learn. 4 This -- their day will [f-ing] come." 5 Towards the bottom of the page you see 6 that? 7 A: Yes, I do. 8 Q: And you indicated yesterday that you 9 understood where Stan Korosec was coming from in his 10 statements. Do you recall that, that he'd been without 11 sleep for a number of days? 12 A: I gave my opinion on what his 13 comments meant or what -- how I interpreted them, yes. 14 Q: Hmm hmm. And you indicated that you 15 didn't have a concern at that time that he meant to carry 16 those out; is that correct? 17 A: That's correct. 18 Q: Okay. So when I say that you have a 19 concern, as well as protecting the public, that you also 20 have a concern for your fellow officers would you agree 21 that's so? 22 A: Again in the form of a question -- 23 I'm concerned about all people if that's what you're 24 asking. 25 Q: That's fair. That's fair.
971 A: For sure. 2 Q: Okay. You're concerned about 3 protecting the people around you when you're involved in 4 a situation such as the incident that evening? 5 A: Which evening? 6 Q: The incident that wound up with Mr. 7 George lying on the ground. 8 A: That was on the 6th; this is the 5th. 9 Q: Yes. 10 A: Yes. 11 Q: Yes, on the 6th. You're concerned 12 about protecting the people that you work with and that 13 you are -- that are under you, so to speak, protecting 14 them, as well as the public, would you agree? 15 A: Yes. 16 Q: Okay. When you heard Stan Korosec's 17 comments, you were concerned about seeing him as a human 18 being and recognizing that he had certain frustrations 19 and was dealing with them; would you agree? 20 A: That's fair. 21 Q: Okay. Would you agree that you took 22 it as simply venting towards you? 23 A: Yes. 24 Q: Okay. And when he says: 25 "I was talking to Mark Wright tonight."
981 You say: 2 "Hmm hmm." 3 You're non-committal, you agree? 4 A: Yes. 5 Q: And then he says: 6 "We want to amass a fucking army." 7 And again, you're letting him vent? 8 A: Yes. 9 Q: Okay. And he goes on to say: 10 "A real fucking army and do this, do 11 these fuckers big time. But I don't 12 want to talk about it, because I'll get 13 all hyped up." 14 And then you direct him to go to bed. 15 A: That's exactly what I did, yes. 16 Q: Okay, that's fair. And you didn't 17 see a need to report that to anybody; is that correct? 18 A: That's correct. 19 Q: Because you took it as him venting? 20 A: Absolutely. 21 Q: And because you had a concern for him 22 as a fellow officer? 23 A: He needed sleep. 24 Q: I'm sorry? 25 A: He needed sleep.
991 Q: Okay. 2 3 (BRIEF PAUSE) 4 5 Q: In retrospect, do you agree that on 6 the night of the 6th, really what happened is that while 7 it was a small army, a small army of police officers did 8 march down that road and confront the Native people 9 there? 10 A: It was -- yeah, sworn police officers 11 did travel down that road the next night, yes. 12 Q: Thank you. And in retrospect, might 13 it have made a difference had you reported that to Carson 14 or some other superior officer that those frustrations 15 were occurring among people like Stan Korosec and Mark 16 Wright? 17 A: I don't believe so, but you would 18 have to ask those people if it would have made a 19 difference. 20 Q: I'm asking about your reaction, in 21 not reporting it. 22 A: It would -- I don't believe it would 23 have made a difference, no. 24 Q: So you don't think it was important 25 for your superior officers to know that that level of
1001 frustration was building up amongst at least two (2) 2 people? 3 A: I did not take his comments serious. 4 Q: Okay. 5 6 (BRIEF PAUSE) 7 8 Q: If I might just have your indulgence. 9 COMMISSIONER SIDNEY LINDEN: Okay. 10 11 (BRIEF PAUSE) 12 13 MS. COLLEEN JOHNSON: Those are my 14 questions today, Commissioner. 15 COMMISSIONER SIDNEY LINDEN: Thank you, 16 Ms. Johnson. 17 18 (BRIEF PAUSE) 19 20 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 21 Rosenthal...? 22 MR. PETER ROSENTHAL: Sorry, sir. I'm 23 waiting for a space to be made. 24 25 CROSS-EXAMINATION BY MR. PETER ROSENTHAL:
1011 Q: Good morning again, Mr. Commissioner 2 and good morning, Officer. My name is Peter Rosenthal 3 and I'm one of the Counsel for a group of Stoney Point 4 people under the name Aazhoodena and George Family Group. 5 A: Good morning, sir. 6 Q: Now, I should like to ask you 7 something different about the transcript that you were 8 just being referred to by Ms. Johnson at your Tab 20, 9 Exhibit P-1154. 10 11 (BRIEF PAUSE) 12 13 Q: I'd like to ask you what you 14 understood him to be meaning as you spoke to him on that 15 occasion and in particular, when you were informed by 16 Officer Korosec about amassing a fucking army, you didn't 17 think it meant military, you thought it meant a large 18 number of police officers; is that correct? 19 A: I -- like I said, I didn't take the 20 comment serious -- 21 Q: I understand your evidence here. 22 A: -- so I didn't make that conclusion. 23 Q: But I'm asking what you took from the 24 meaning from what he was saying. "Amass of fucking army" 25 could have no other meaning, could it other than what
1021 Stan Korosec told us meaning a large number of police 2 officers, right? 3 A: I'm not aware of what Stan Korosec -- 4 Q: No but I'm asking you, you took from 5 that he meant a large number of police officers, did you 6 not? 7 A: I don't know if I interpreted that as 8 that at all. 9 Q: Well, what did you take from that? 10 Take your mind back, sir. Not what you'd like it to mean 11 today, but what you would have taken from it then. You 12 hear Stan Korosec say, "we're going to amass a fucking 13 army". 14 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 15 Jones...? 16 MR. PETER ROSENTHAL: What did you take 17 from it, sir? 18 COMMISSIONER SIDNEY LINDEN: Just a 19 minute. Ms. Jones has an observation. 20 MS. KAREN JONES: Mr. Commissioner, it's 21 certainly fair for Mr. Rosenthal to ask this Witness 22 questions but a commentary, not what you would like it to 23 mean today, I'd really ask that that kind of commentary 24 exceeds. 25 COMMISSIONER SIDNEY LINDEN: Yes. Yes.
1031 Just ask the question. You've asked the question. He 2 can answer it if he can. 3 4 CONTINUED BY MR. PETER ROSENTHAL: 5 Q: Now, sir, if you would, you are here 6 today but you were here -- you were there eleven (11) 7 years ago and you are the person who was on the receiving 8 end of these comments from Stan Korosec. 9 And I'm asking you would you not take by - 10 - forgetting the expletive, by a massing an army, 11 wouldn't you take that as meaning that we're going to get 12 a large number of officers involved in this? 13 A: I did not put that interpretation on 14 at that time. 15 Q: What interpretation did you put on 16 it, sir? 17 A: I didn't put any. I didn't -- 18 Q: You didn't put any interpretation on 19 it? 20 A: He was venting. 21 Q: When you said "Hmm hmm" it didn't -- 22 you weren't even registering the words in having any 23 meaning at all; is that your evidence, sir? 24 A: As you can see my -- my intention in 25 this phone call at that point was to get Stan to go back
1041 to bed. 2 Q: Well -- 3 A: So I made no comment. 4 Q: Be that as it may, you understood he 5 was speaking words that had a meaning, did you not, sir? 6 A: He -- he was venting. 7 Q: Sorry? 8 A: I've told you what my meaning -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 THE WITNESS: -- what he said. My 11 interpretation was he was just venting. 12 MR. PETER ROSENTHAL: I see. 13 COMMISSIONER SIDNEY LINDEN: He's already 14 gone over this in-chief and in cross. Same question, 15 same answer. He's venting. 16 MR. PETER ROSENTHAL: With -- with great 17 respect, Mr. Commissioner -- 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. PETER ROSENTHAL: -- he wasn't asked 20 what the meaning of these words were to him at the time-- 21 COMMISSIONER SIDNEY LINDEN: Well -- 22 MR. PETER ROSENTHAL: -- and I'm asking 23 now and I -- 24 COMMISSIONER SIDNEY LINDEN: I 25 understand. You're entitled to ask these questions or
1051 some of them, but he has already said what he interpreted 2 he -- 3 MR. PETER ROSENTHAL: Oh, yes. 4 COMMISSIONER SIDNEY LINDEN: -- was 5 allowing him to vent. 6 MR. PETER ROSENTHAL: I understand -- 7 COMMISSIONER SIDNEY LINDEN: It's not 8 helpful to hear that again and again. 9 MR. PETER ROSENTHAL: Sir, did you -- 10 yes, I don't' want to hear that again and again either, 11 Mr. Commissioner. 12 COMMISSIONER SIDNEY LINDEN: No, I know 13 that. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: Sir, did you hear Stan Korosec's 17 evidence at this Inquiry? 18 A: No, I did not. 19 Q: Did -- did you read it? 20 A: No. 21 Q: Did you speak to anybody about it at 22 all? 23 A: I don't believe so. 24 Q: Did you know that he was questioned 25 about this phone call?
1061 A: I believe so. 2 Q: How did you know that? 3 A: I believe my daughter told me that 4 she read something in the paper. 5 Q: She read something in the paper. I 6 asked you, did you read the transcript, you said, no. I 7 asked if you spoke to anybody about it, you said, no, but 8 you knew he was questioned about this phone call, right? 9 A: No. I knew that Stan Korosec had 10 testified. I knew -- 11 Q: Did -- did you know that he was 12 questioned about this phone call, sir? 13 I believe you said yes to that. The 14 transcript will reveal what the question was and what the 15 answer was. But what is your answer now, sir? 16 Did you know that he was questioned about 17 this phone call, specifically? 18 A: I don't recall about this transcript 19 specifically, no. 20 Q: Did you know he was questioned about 21 the phone call? 22 A: I believe so. 23 Q: You did know that he was questioned 24 about the call? How did you get that knowledge that he 25 was questioned about the phone call, sir?
1071 COMMISSIONER SIDNEY LINDEN: I want to 2 remind you, Mr. Rosenthal that this is a public inquiry. 3 MR. PETER ROSENTHAL: Yes. 4 COMMISSIONER SIDNEY LINDEN: That every 5 word that everybody says is on a live web cast and that a 6 large part of it is being reported in the media. 7 MR. PETER ROSENTHAL: Yes. 8 COMMISSIONER SIDNEY LINDEN: And that's 9 the idea of a public inquiry so everybody knows what's 10 going on. 11 MR. PETER ROSENTHAL: Absolutely and 12 there's nothing wrong with -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. PETER ROSENTHAL: -- him having 15 watched the webcast -- 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 MR. PETER ROSENTHAL: -- or him reading 18 the transcript or talking to people about it. I'm not 19 suggesting there is anything wrong with it. 20 COMMISSIONER SIDNEY LINDEN: But the tone 21 and the manner of your question seems to suggest it 22 perhaps. I just want to -- 23 MR. PETER ROSENTHAL: Well, sir, I'll 24 explain what the problem is -- 25 COMMISSIONER SIDNEY LINDEN: In a
1081 criminal case it would be a different story. 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: The question is, how -- how did you 5 learn about that, sir, if you didn't read the 6 transcripts, you didn't watch website and you didn't talk 7 to anybody about it? 8 Do you say it was from a newspaper article 9 that said that Stan Korosec was questioned about this 10 phone call? Is that your evidence? 11 A: I believe so. I believe so. 12 Q: I see. Okay. Now, going back to the 13 meaning here. I asked you about army. What would you 14 take the meaning of the phrase "Do these fuckers big 15 time" to be? 16 I would put it to you that would mean beat 17 them up, would it not? 18 A: It could have a lot of meanings, yes, 19 but you could draw that inference. 20 Q: And that's -- that's a reasonable -- 21 that's the most common inference that you would draw from 22 somebody saying, I'm going to do these fuckers big time, 23 right? 24 A: But that's not the inference I drew. 25 Q: You told us -- I understand you told
1091 us you thought he was venting and so on, but the words 2 themselves would mean to you at the time and today, beat 3 them up, right? 4 A: No, not necessarily. 5 Q: Well, what else would they mean, sir? 6 A: You know in -- in -- maybe not with 7 the word, "fucking big time" in there, but to do somebody 8 can be something as simple as, to give you an example -- 9 Q: Sir, excuse me, but you're going to 10 give an example of without those words, "big time" in 11 there? 12 A: Well, I can say -- 13 Q: You say maybe without that, that's 14 not -- not -- 15 MS. KAREN JONES: Mr. Commissioner, this 16 Witness is trying to answer. 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MS. KAREN JONES: He should be allowed to 19 finish answering the question. 20 COMMISSIONER SIDNEY LINDEN: Well, I 21 think you're right, he should be allowed to at least 22 finish he answer. It's not exactly the question you 23 asked and you can come back to it. 24 MR. PETER ROSENTHAL: Yeah, I am very 25 worried about time, Mr. Commissioner, that's why --
1101 COMMISSIONER SIDNEY LINDEN: I am too. I 2 am too, but -- 3 MR. PETER ROSENTHAL: Yes, I saw that but 4 -- but -- so I -- I -- the only reason I -- it's not 5 because I didn't want him to have his answer, I'm just 6 very concerned about time, sir. 7 COMMISSIONER SIDNEY LINDEN: Thank you. 8 9 CONTINUED BY MR. PETER ROSENTHAL: 10 Q: But, sir, please continue your 11 answer. So if it didn't say, "big time," if it just 12 said, "do these fuckers," then what? 13 A: I was going to give you an example. 14 Q: Yes. 15 A: I'm an officer. I stop somebody on 16 the side of the road an another officer drives by. Later 17 they ask me, Did you do the person? They didn't mean did 18 I beat him up. 19 Q: Yes. 20 A: They meant did I write him a ticket. 21 Q: Okay. 22 A: It can be something as simple as that 23 but doing somebody, that is a common term that has no 24 vicious meaning to it. 25 Q: Okay.
1111 A: Now, when you add the word -- 2 Q: Now, I should like to ask you however 3 about the context of -- in the exact context here: 4 "We want to amass a fucking army. 5 Hmm hmm. 6 A real fucking army and do this -- do 7 these fuckers big time." 8 Now, I put it to you then in that context 9 you would have understood what he meant, although you 10 told us you thought he was only venting when he said it, 11 but you would have understood what he meant was, beat 12 them up? 13 A: I never believed that he meant what 14 he was saying; that's what I said. 15 Q: You didn't believe he meant what he 16 was saying -- 17 A: That's correct. 18 Q: -- but the meaning of the words were 19 beat them up, but you didn't think he really was going to 20 do it, right? 21 A: I believe you'd have to ask him -- 22 Q: Yes. 23 A: -- what he meant by his words. 24 Q: No, but I'm asking you what you took 25 and you took from it, it meant beat him up but of course
1121 Stan Korosec wouldn't really beat them up; is that fair? 2 A: I -- I didn't put that interpretation 3 on that. 4 Q: I'm sorry? 5 A: I -- I did not put that 6 interpretation on it. He was -- 7 Q: Well, what meaning would you 8 ascribe -- 9 A: -- venting, I put -- 10 Q: -- ascribe to it in the context, sir, 11 with the whole context leaving in the "big time," leaving 12 in every word that's here? What other meaning could you 13 possibly have taken from it at that time other than beat 14 them up? 15 A: I think I already told what I thought 16 what he meant. 17 Q: I'm sorry? 18 A: I -- I already -- I believe I 19 answered the question. I told you what I -- how I 20 interpreted what he said. 21 Q: You told us that you thought he was 22 venting. 23 A: That's right. 24 Q: And I'm asking you what you thought 25 those words meant, sir, and you told us without "big
1131 time" it could mean this. Now, with "big time" it can't 2 mean anything other than beat them up can it, sir? 3 A: I don't know if I can answer that 4 question. 5 Q: Okay. Thank you. I think you have 6 answered that question, sir. 7 COMMISSIONER SIDNEY LINDEN: Now -- 8 9 CONTINUED BY MR. ROSENTHAL: 10 Q: Now, Wade Lacroix, is he someone you 11 knew prior to September of 1995, sir? 12 A: Yes. 13 Q: You knew him fairly well? 14 A: Fairly well, yes. 15 Q: And for several years prior to that 16 time? 17 A: Yes. 18 Q: Worked with him from time to time? 19 A: He was my detachment commander for a 20 time, yes. 21 Q: Now, he and Stan Korosec were good 22 friends were they? 23 A: I don't know if they're good friends 24 or acquaintances at work for sure. 25 Q: Okay. Now, did you learn at sometime
1141 around September 5th or -- 4th, 5th, or 6th of 1995 2 something to the effect of that Staff Sergeant Lacroix 3 had been in contact with the local MP at the time, Marcel 4 Beaubien, about their concerns related to Ipperwash at 5 all? Did you learn about that, sir? 6 A: I don't believe so. 7 Q: Did you get some understanding the 8 2nd or 3rd or 4th then that the Premier of Ontario was 9 watching this situation in some sense? 10 A: I don't have any recollection of 11 that. I -- I was, you know, a constable on the road, I 12 wasn't in conversation with those people. 13 Q: No, you weren't in conversation with 14 the Premier I take it, were you, sir? 15 A: No. 16 Q: But weren't you aware that officers 17 had been informed that Marcel Beaubien was interested in 18 this matter and the Premier was interested in this 19 matter? 20 Weren't you generally aware of at least 21 that -- that much, sir? 22 A: I think I'm fairly well informed by 23 reading papers and stuff, but I -- I don't know if I was 24 informed of that, of... 25 Q: You were generally aware of that on
1151 September 4, 5, 6, 1995; is that correct? 2 A: In -- in that period of time, I 3 couldn't put a date on it, but I was aware of what -- 4 kind of what was happening behind the scenes as much as I 5 would know. 6 Q: You were aware of some political 7 concern with the issue and we stated that generally and 8 had you agree to least that much? 9 A: That's possible, yes. 10 Q: Now... 11 12 (BRIEF PAUSE) 13 14 Q: Now, did you -- were you aware of 15 Stan Korosec staying -- saying anything on the evening of 16 September 6th to the effect of that, Lacroix is on his 17 way up to do these guys, or anything like that? 18 A: I'm not aware of that. 19 Q: Now, when did you write your notes 20 for September 6th, sir? 21 I believe you -- not until September 7th; 22 is that correct? 23 A: That's correct, yes. 24 Q: After you gave the interview? 25 A: Yeah --
1161 Q: That we have at Tab 25. 2 A: Yes. 3 Q: And by that time, you were aware that 4 Dudley George was dead? 5 A: I don't know if I knew that at that 6 time or not. 7 Q: But -- 8 A: I -- I believe I was aware that 9 somebody was -- had died, but I don't know -- 10 Q: You may not have known his name. 11 A: Yes. 12 Q: But you knew that a person had been 13 killed? 14 A: I believe so, yes. 15 Q: And you knew that the person who had 16 killed him was Ken Deane, right? 17 A: No, I did not know that. 18 Q: You didn't know that at that time? 19 A: No. 20 Q: I see. When did you first learn 21 that? 22 A: I'd be speculating. I think it was 23 some weeks after. I'm not sure. 24 Q: I'm sorry, my hearing's very bad. 25 A: I believe it was some time after. I
1171 can't recall when it was. 2 Q: Within days, surely, of September 3 6th, 1995, correct? 4 A: I don't recall. 5 Q: Well, within a month? Can we say for 6 sure by the end of September of 1995 you knew? 7 A: I'm not going to guess. 8 Q: I'm sorry? 9 A: I'm not going to guess. 10 Q: No, but we -- you can put a limit on 11 it. You knew before yesterday, didn't you? 12 A: For sure. 13 Q: Did you know by the end of 1995? 14 A: Yes. 15 Q: Yes. Excuse me. 16 Sorry, Mr. Commissioner. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: There is an excerpt from the scribe 21 notes and I should like to give a copy to the 22 Commissioner and to the Witness, please. 23 24 (BRIEF PAUSE) 25
1181 Q: This is page 76 of the scribe notes, 2 Exhibit P-426. 3 4 (BRIEF PAUSE) 5 6 Q: And you'll see two (2) passages 7 marked with the numbers 1 and 2 in my very own sloppy 8 hand, which I hope you'll forgive me for. 9 But it's at the time 20:49, and this on 10 the evening of September 6th, 1995, the evidence is sir. 11 And I would appreciate that you probably 12 were not there when these instructions were given by 13 incident commander Carson, but what I -- what I want to 14 ask you is if you became aware, in the evening, before 15 you marched down the road with CMU, of these two (2) 16 notions. 17 Number 1: 18 "JOHN CARSON: All we are doing is 19 observation. We are not going 20 tactical. Let's get that straight." 21 And then the second passage: 22 "JOHN CARSON: We are using TRU to go 23 in and get an eye. If they are just 24 having a campfire, let's leave them. 25 Why go in the dark?"
1191 Now, did you become generally aware that 2 incident commander Carson had the view that what the 3 officers as a whole should do on that evening, would be 4 to check it out, see if they were doing anything 5 dangerous; that's, I would suggest, the meaning of if 6 they're just having a campfire, find out if they're doing 7 anything dangerous, and if nothing dangerous is going on, 8 leave it 'til the next day. 9 Did you become aware that that was the 10 plan? 11 A: No. 12 Q: You never became aware of that? 13 A: No. 14 Q: When you were briefed that evening, 15 nobody gave you that information at all? 16 A: In relation to these times of the 17 night, I think I made it fairly clear that leading up to 18 the time I was at Checkpoint Charlie and was asked to go 19 to the TOC, we were maintaining the peace and that under 20 no circumstances we go into the Park. 21 So yes, we were just maintaining a 22 visibility in the area. 23 Q: Yes. But then later on you went back 24 to the TOC and you were formed up as part of the CMU 25 team, as we've heard, right?
1201 A: That's correct. 2 Q: And you were briefed by Wade Lacroix 3 with respect to that part of the operation; is that 4 correct? 5 A: It would have been after ten o'clock 6 that night. 7 Q: Yes. 8 A: This is an hour and ten (10) minutes 9 or so before that. 10 Q: I appreciate that, sir. And when you 11 were briefed by Wade Lacroix, did he give you this idea 12 at all, that if they're not doing anything dangerous, we 13 want to leave them alone. We don't want to do anything 14 in the dark. 15 Did he communicate that idea to you? 16 A: No. 17 Q: Not at all? 18 A: No. 19 Q: And in fact, he communicated to you a 20 quite different idea, right? 21 Your basic idea that he communicated to 22 you was: We're going to go down there and arrest anybody 23 who's in the sandy parking lot, right? 24 A: That would be fair. 25 Q: That's what he said to you?
1211 A: I don't recollect -- 2 Q: Words to that effect? 3 A: Yes. 4 Q: So even if they were having a 5 campfire in the sandy parking lot, to use John Carson's 6 exact words from 20:49, you were going to arrest them, 7 right? 8 A: No. 9 Q: With your arrest team. 10 A: I can't take this conversation and 11 put it into that situation. 12 Q: Well, no, forget the -- forget who 13 said what. As you understood what Wade Lacroix told you, 14 when you went down that road your arrest team was going 15 to arrest anybody who was in the sandy parking lot 16 whatever, they were doing; whether they were having a 17 campfire or doing anything else, right? 18 A: I don't recall that, no. 19 Q: Well, wasn't -- wasn't that a 20 consequence of what you told us were Wade Lacroix's 21 instructions? 22 A: I -- 23 Q: Arrest anybody who's in the sandy 24 parking lot, period, right? 25 A: No, I don't think I said that.
1221 Q: Oh, I'm sorry. What was -- what were 2 his instructions? 3 Anybody who was in the sandy parking lot, 4 what should do you with them? 5 A: I don't remember the specific 6 directions on that, but we -- on any situation, the -- 7 the arrest is dependant upon the situation at the time. 8 Q: Yes. But what did he tell you your 9 mission was, walking down that road? 10 A: To clear the sandy parking lot. 11 Q: Clear the sandy parking lot. 12 A: Which was -- 13 Q: Yes. 14 A: -- a public road at that time. It 15 was to open up -- 16 Q: It was your understanding there might 17 be some people who were in the sandy parking lot rather 18 than back in the Park, right? 19 A: Yes. 20 Q: And it was your understanding that 21 any such people who didn't remove themselves from the 22 sandy parking lot by the time you got there, were to be 23 arrested by your arrest team, right? 24 A: That was a possibility, yes. 25 Q: Well, there was a possibility, or was
1231 that the order that Wade -- Wade Lacroix gave you, sir? 2 A: I don't remember the specific order 3 that we would be, as the arrest team, arresting people in 4 that sandy parking lot. 5 Q: So what were you supposed to do as 6 you marched down the road? Did you have some idea as to 7 what you were going to do if somebody was having a 8 campfire in the sandy parking lot? 9 A: I believe there would have been some 10 negotiations take place. 11 Q: Negotiations? 12 A: I believe so. 13 Q: I see. And who was the negotiator 14 for your team? 15 A: I don't know. 16 Q: But you think there was a negotiator 17 for CMU that was going to negotiate with anybody in the 18 sandy parking lot? 19 A: There was a possibility there would 20 be some conversation between the people, the CMU and the 21 people in the parking lot; that was a possibility. 22 Q: Sir, I'm not asking about 23 possibilities now. I'm asking about plan, okay? 24 A: Is -- 25 Q: Was there a plan as you marched down
1241 the road, that you were aware of, as to what to do if 2 people were in the sandy parking lot, sir? 3 A: A lot of it would be determined by 4 the actions of the people in the sandy parking lot. 5 Q: And if they were having a campfire, 6 what were your actions to be, sir? 7 A: I don't remember specific directions 8 that they would, in fact, be arrested. 9 Q: Well what was -- what was your 10 understanding? What would have happened if you came -- 11 what was the plan? You march down the road, you see a 12 few people toasting marshmallows on the sandy parking 13 lot, what do you do? 14 A: Could they be arrested? Yes. 15 Q: But would they have been? Was the 16 plan to arrest them? 17 A: If the situation had been people in 18 the parking lot having a campfire and they failed to 19 remove themselves, I'm sure there would have been some 20 communication, and then yes, probably would have been 21 arrested. 22 Q: Sir, again, I'm not asking you what 23 you think might have happened, I'm asking you the plan. 24 And are you telling us you don't know what the plan was? 25 A: I don't -- I don't recall the
1251 specifics of that, it -- were everybody going to be 2 arrested, regardless -- 3 Q: You don't recall anything about the 4 plan, apparently. 5 MS. KAREN JONES: All right. I'm sorry, 6 that's -- 7 COMMISSIONER SIDNEY LINDEN: Well, that's 8 not fair. That's not fair. You asked him a specific 9 question. 10 MS. KAREN JONES: That -- that is 11 absolutely unfair. 12 COMMISSIONER SIDNEY LINDEN: Yes, that's 13 fine. 14 MS. KAREN JONES: He has indicated 15 clearly what he thought the plan was. 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MS. KAREN JONES: He's being pushed if he 18 knew whether there were other elements to the plan and -- 19 and that's an entirely different question. 20 COMMISSIONER SIDNEY LINDEN: Yes. Okay. 21 MR. PETER ROSENTHAL: With great respect, 22 Mr. Commissioner, we'll look over the transcript and see. 23 COMMISSIONER SIDNEY LINDEN: Well -- 24 MR. PETER ROSENTHAL: But if he's -- if 25 he's indicated what the plan was, I should like to know
1261 what was the plan as to what you would do with somebody 2 having a campfire in the sandy parking lot? I don't 3 believe he answered that. 4 COMMISSIONER SIDNEY LINDEN: I believe he 5 did. I believe he did. 6 MS. KAREN JONES: My -- My Friend is 7 splitting hairs here. 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MS. KAREN JONES: He was asked -- the -- 10 the Witness was asked yesterday and I'll quote -- 11 COMMISSIONER SIDNEY LINDEN: And today. 12 MS. KAREN JONES: -- from the transcript 13 at question -- at line 242: 14 "And tell me as carefully as you can 15 your understanding of what the game 16 plan was as communicated by Sergeant 17 Lacroix. 18 A: The intersection of Army Camp Road 19 and East Parkway Road had been occupied 20 by protestors and they were blocking 21 the public access road, which was at a 22 location they had set up outside the 23 perimeter of the Provincial Park. And 24 that we were going to go down to the 25 location to clear the intersection of
1271 the people and property. 2 And what My Friend is now suggesting is -- 3 and I asked later on were there any limitations to that 4 and he said -- or -- or qualifications and he said, No. 5 Now, My Friend is putting to him a 6 potential qualification, well what if what they were 7 doing wasn't just occupying but having a fire -- a fire. 8 And I don't think that that advances this Inquiry -- 9 COMMISSIONER SIDNEY LINDEN: Well -- 10 MS. KAREN JONES: -- at all. He's 11 indicated what the plan is and there were no 12 qualifications to it, they were to clear the 13 intersection. 14 COMMISSIONER SIDNEY LINDEN: And he knew 15 what the plan was, he's testified to it. Ask the 16 question, Mr. -- 17 MR. PETER ROSENTHAL: Well, with great 18 respect, Mr. Commissioner, we'll analyse this over the 19 transcript. But may I question, based on what My Friend 20 has put forward? 21 22 CONTINUED BY MR. PETER ROSENTHAL: 23 Q: You gave that evidence yesterday -- 24 COMMISSIONER SIDNEY LINDEN: Well -- 25
1281 CONTINUED BY MR. PETER ROSENTHAL: 2 Q: -- as read, right? 3 A: That's correct. 4 Q: And Ms. Vella accurately summarized 5 it, did she, sir, that you indicated there was no 6 qualification on it? 7 A: I don't recall specific qualifica -- 8 Q: Is that an accurate summary? 9 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 10 Jones...? 11 MS. KAREN JONES: Mr. Commissioner, if 12 this Witness is going to be taken to specific sections of 13 the transcript, why not just read the -- the portion of 14 the transcript and he can say if he agrees with it or if 15 he doesn't agree with it -- 16 COMMISSIONER SIDNEY LINDEN: Well -- 17 MS. KAREN JONES: -- rather than have 18 this be some kind of memory test -- 19 COMMISSIONER SIDNEY LINDEN: That's not-- 20 MS. KAREN JONES: -- was it this or was 21 it that? 22 COMMISSIONER SIDNEY LINDEN: Well, Ms. 23 Vella read it to him. Ms. Vella read it to him, not Mr. 24 Rosenthal. 25 MR. PETER ROSENTHAL: Sorry, Mr.
1291 Commissioner, may I try to withdraw this and -- and start 2 in a little slightly different way and get it? 3 When I said he didn't answer the plan I 4 meant today when I asked him what the plan is, I -- I 5 wasn't looking over the transcript yesterday. 6 COMMISSIONER SIDNEY LINDEN: Well -- 7 MR. PETER ROSENTHAL: And I -- but in any 8 event I would like to -- this is of course a very crucial 9 matter and I would like to clarify it. 10 11 CONTINUED BY MR. PETER ROSENTHAL: 12 Q: And I just want your evidence, sir, 13 as to what you understood the plan was, and more 14 particular, I'm asking more specifically, what we -- what 15 -- what did the plan imply you should do if you saw 16 people in the parking lot who were having a camp fire? 17 Were you supposed to clear them, as seems 18 to be suggested by your answer yesterday, no matter what, 19 even if they were just having a campfire, or not, sir? 20 A: I believe what I said is depending on 21 the situation; if we attended, and that's in fact what 22 was going on, I'm sure I would have received further 23 directions from my superior at that time on what to do. 24 Q: Sir, may I just reiterate, I -- I'm 25 not interested in your notion as what -- to what you're
1301 sure you would have done. I'm asking you was there -- 2 what about the plan? Did the plan have any implications, 3 as you understood it, when Wade Lacroix was briefing you, 4 before you marched down the road? 5 Did his instructions, whatever he told you 6 that night, give you an answer to the question: If 7 someone was having a campfire what you should do? 8 A: Again, I don't recall the specifics 9 that under -- if that was a fire going -- only a fire 10 that they were to be arrested. 11 Q: Well, if they were just sitting 12 there, if they were doing nothing dangerous, but they 13 were in the sandy parking lot and not endangering 14 anybody, as far as you could tell, were your instructions 15 to clear the parking lot in that situation or just to 16 stay back and make sure nothing dangerous happened? 17 A: I don't specifically recall him 18 saying that under any circumstances people in the 19 intersection would be arrested. 20 Q: Sir, can you answer the question that 21 I just asked you? 22 COMMISSIONER SIDNEY LINDEN: Well, I 23 think he's answered it. He may not have answered it 24 exactly the way but I think you've got an answer. 25 MR. PETER ROSENTHAL: With respect, Mr.
1311 Commissioner, we can parse it better when it's in the 2 transcript. 3 But did -- did the instruction include 4 clearing people, even if there was no apparent danger by 5 their presence in the parking lot? 6 COMMISSIONER SIDNEY LINDEN: Okay. 7 MR. PETER ROSENTHAL: That could be 8 answered yes or no, simply. 9 COMMISSIONER SIDNEY LINDEN: Stop there 10 then and let's see if that's a simple question, yes or 11 no. It's a simple question -- 12 MR. PETER ROSENTHAL: Yes. 13 COMMISSIONER SIDNEY LINDEN: -- I think. 14 Now, let's see if that's a simple question, yes or no. 15 It's a simple question. 16 MR. PETER ROSENTHAL: Yes. Let's see. 17 COMMISSIONER SIDNEY LINDEN: I think. 18 Now, let's see if he can answer that and we can move on. 19 20 CONTINUED BY MR. PETER ROSENTHAL: 21 Q: Do you understand the question, sir? 22 Perhaps I should repeat it. 23 Did the instructions imply that you should 24 clear the parking lot of people even if it appeared that 25 they were not doing anything dangerous?
1321 A: No. I don't recall that. 2 Q: You don't recall the answer to that 3 question? You don't know if the instruction implied that 4 you should clear them still or not; is that what you're 5 telling us? 6 COMMISSIONER SIDNEY LINDEN: He's an -- 7 THE WITNESS: What you -- 8 COMMISSIONER SIDNEY LINDEN: He doesn't 9 recall the plan dealing with it in exactly the way you're 10 putting it to him. Now we can go over this again and 11 we're not getting anywhere. 12 MR. PETER ROSENTHAL: Well but this is 13 very important. 14 COMMISSIONER SIDNEY LINDEN: So. No, I 15 think you -- 16 MR. PETER ROSENTHAL: Mr. Commissioner, 17 we have a situation here where the head of the arrest 18 team is telling us -- 19 COMMISSIONER SIDNEY LINDEN: No. I don't 20 need any argument. Now you've asked the question -- 21 MR. PETER ROSENTHAL: No, I know. 22 COMMISSIONER SIDNEY LINDEN: -- you've 23 got an answer. You've got to move on. 24 MR. PETER ROSENTHAL: Well but I -- I 25 should like to, because of the importance of this just
1331 try and come at it one more time for slightly differently 2 if I may and then I'll move on, Mr. Commissioner. 3 But -- well just let me clarify and then 4 maybe I'll move on right after clarifying. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: As I understood your evidence a few 8 minutes ago, you're telling us that when you think back 9 as to what was -- what you understood at the time, the 10 plan that you got from Sergeant Lacroix when he was 11 briefing you before you marched down the road, you can't 12 tell us whether or not that plan would have included 13 arresting people who were merely in the sandy parking lot 14 if they were not doing anything dangerous, right? 15 You can't tell us if the plan included 16 arresting them or not? 17 A: That's correct. 18 Q: Thank you. I shall move on, Mr. 19 Commissioner. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 22 CONTINUED BY MR. PETER ROSENTHAL: 23 Q: Now, you told us you don't recall the 24 exact words that Wade Lacroix had spoke to you in the 25 course of that briefing; is that correct?
1341 A: That's correct. 2 Q: But you were one of a number of ERT 3 members who were being briefed by Wade Lacroix at the 4 time; is that correct? 5 A: Yes. 6 Q: Can you take your mind back -- you 7 can -- can you picture was it the whole CMU team that was 8 going to march down the road and was he standing talking 9 to all of you? 10 A: I don't recall that, no. 11 Q: But to a large number of you? 12 A: The arrest team or the five (5) of us 13 that formed the base of the arrest team kind of arrived 14 at the TOC while most of the others were already, you 15 know, were getting ready to go. 16 Q: So you got a separate briefing, the 17 arrest team; is that what you're saying? 18 A: I don't know. I don't know if they 19 had been briefed before I got there or not. 20 Q: But -- but you participated in the 21 briefing by Wade Lacroix, and the other people who 22 participated in the briefing that you participated in 23 were members of your arrest team; is that your evidence, 24 sir? 25 A: I believe so, yes.
1351 Q: And as far as you recall, there may 2 not have been any other members of CMU who were part of 3 that briefing that was directed to your arrest team; is 4 that your evidence? 5 A: That's correct. 6 Q: Thank you. Now did Wade Lacroix say 7 anything to you in your -- in that briefing to the effect 8 of, We're going to do those guys big time? 9 A: No. 10 Q: No? You -- 11 A: I don't recall that. 12 Q: You don't recall that? 13 A: No. 14 Q: Now if we could please look at 15 Exhibit P-438. You had a separate copy of this yesterday 16 I believe, sir. It's the Chatham logger tape. 17 Mr. Commissioner, I don't know if you have 18 a copy -- thank you. 19 COMMISSIONER SIDNEY LINDEN: Yes, I do. 20 21 CONTINUED BY MR. PETER ROSENTHAL: 22 Q: And I believe you told us yesterday 23 that you would have been hearing these transmissions; is 24 that correct, sir? 25 A: That I would have been hearing them?
1361 Q: Yes. 2 A: Like on the radio? 3 Q: Yes. 4 A: Yes. 5 Q: Yes. So you were wearing some kind 6 of a radio and I'm not good at knowing what the different 7 kinds are, but -- that allowed you to hear the 8 transmissions that went back and forth between Lacroix 9 and the TOC, right? 10 A: That's correct. 11 Q: And I gather that whatever equipment 12 you were wearing allowed you to talk into it and 13 communicate with the other members of the CMU as well; is 14 that correct? 15 A: I did have that capability, yes. 16 Q: You had that capability. And then, 17 for example, if we look at this transcript and we see 18 sometimes often Lacroix but sometimes Hebblethwaite and 19 other officers referred to as having made transmissions 20 according to this transcript, right? 21 A: That's correct. 22 Q: And that's because those officers, 23 presumably similar to you, would have equipment that 24 allowed them not only to hear the transmissions but also 25 to contribute to them, right?
1371 A: That's correct. 2 Q: Okay. So, at the very beginning of 3 this, on the second entry, Lacroix says that: 4 "We're advancing to within three 5 hundred (300) [presumably 300 metres?]" 6 Is that what you understood at the time, 7 sir? 8 A: I believe so, yes. 9 Q: And can you take your mind back to 10 September 6th, 1995 and picture yourself on the road, 300 11 metres from the sandy parking lot? 12 A: I'm there, yeah. 13 14 (BRIEF PAUSE) 15 16 Q: And then shortly after that, there's 17 a halt and then the middle of the page, Lacroix says: 18 "Okay, good news. They've got rocks 19 and sticks piled up and we all know we 20 can beat that. Rocks and sticks, 21 that's in our bailiwick." 22 So, am I correct, sir, that you would have 23 understood that to mean to that if they're piling up 24 rocks and sticks, that probably means that they don't 25 have any guns.
1381 Guns, firearms, that would be something to 2 be very concerned about, but if it's rocks and sticks, 3 that's no so dangerous. We're protected against that and 4 we can march down the road 5 Is that a fair summary of what you would 6 have taken from that, sir? 7 A: If we look at the totality of the 8 statement, maybe it's different than what you're saying-- 9 Q: Yes. 10 A: -- you know. 11 Q: He says: 12 "All we have to worry about is little 13 brown stocks and black barrels." 14 So, isn't that consistent with what I just 15 said? In other words, he saying they have rocks and 16 sticks, so, that's good news. All that we have to worry 17 about is if they had something more and we don't -- and 18 implicitly, he's saying we don't see that now. 19 Of course, later on down the road, there 20 was a report of a possible firearm and that changed 21 things, right? 22 A: That's not how I would interpret that 23 now. 24 Q: That's not how you interpret this? 25 A: That's right.
1391 Q: I see. How do -- how do you 2 interpret: 3 "Good news, they've got rocks and 4 sticks piled up and we all know we can 5 beat that. Rocks and sticks, that's in 6 our bailiwick." 7 And then he talks about guns. 8 A: Yes. 9 Q: But he's suggesting that -- isn't he 10 suggesting all they have is rocks and sticks. He 11 wouldn't say it's good if they have rocks and sticks and 12 guns, would he? 13 A: Do you want my interpretation? 14 Q: Yes, sir. 15 A: When we didn't have to worry about 16 rocks and sticks, I believe what's he was saying and I -- 17 you'd have to ask him, but that the equipment that were 18 equipped with, could -- we could defend ourselves with -- 19 from rock and sticks. 20 Q: Yes. 21 A: But what our biggest worry was, was 22 guns. 23 Q: Yes. But doesn't the -- what he 24 says, "Good news, they have rocks and sticks", didn't 25 that suggest to you at the time, sir, that what he meant
1401 was, It's good to have rocks and sticks because it means 2 they probably don't have guns? 3 Because if they have guns, they're not 4 going to bother with rocks and sticks, right? 5 COMMISSIONER SIDNEY LINDEN: No. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: If you're -- if you're planning to 9 shoot, you're not going to throw a rock, right? 10 A: That's -- 11 Q: That's not the way you interpret 12 that? 13 A: No. 14 Q: Okay. 15 COMMISSIONER SIDNEY LINDEN: He's given 16 you his interpretation. 17 MR. PETER ROSENTHAL: No, no, I put it to 18 hin and I'll move -- 19 COMMISSIONER SIDNEY LINDEN: That's fine. 20 MR. PETER ROSENTHAL: -- on now. 21 22 CONTINUED BY MR. PETER ROSENTHAL: 23 Q: And then at page 3, now, the third 24 entry attributed to Lacroix: 25 "Two (2) to 300 metres out. Awaiting
1411 instructions. [and] 2 SKINNER: Standby" 3 The two (2) to 300 metres out at that time 4 would have meant from the sandy parking lot; is that 5 correct? 6 A: I believe so. 7 Q: That's what you would have understood 8 at the time? 9 A: Yes. 10 Q: But then on the next page, the top of 11 the next page it says: 12 "Advance one (1) hydro pole." 13 So, I gather there were hydro poles on 14 East Parkway Drive that evening; is that correct? 15 A: I would assume by that comment that 16 there were hydro poles, yes. 17 Q: And he was saying let's march down 18 the road up to the next hydro pole? Is that -- is that 19 what was going on? 20 A: That's correct. 21 Q: Can you assist us as to how much of 22 an advance that might have been to the next hydro pole? 23 A: My experience is that hydro poles are 24 normally about 50 metres apart if they're -- 25 Q: So then it would have been less than
1421 or equal 50 metres -- 2 A: Yeah, more -- 3 Q: Because it might have been right at a 4 hydro pole or in the middle of two (2) so it would be up 5 to 50 metres, that advance then, right? 6 A: That's my recollection. 7 Q: Yes. 8 A: That's normally hydro pole-- 9 Q: No, I appreciate it's not -- 10 A: -- distance. 11 Q: -- a precise recollection, sir. 12 13 (BRIEF PAUSE) 14 15 Q: And then towards the bottom of that 16 page, attributed to Skinner: 17 "The subject is believed to be armed." 18 And Hebblethwaite: 19 "Copy that, one (1) subject armed, long 20 gun." 21 And you recall, sir, that there was a 22 report at some point as you marched down the road, that 23 somebody might be armed, right? 24 A: That's correct. 25 Q: But then as we see later on, it
1431 turned out that report was inaccurate and further 2 observation of that person confirmed that it was a stick 3 rather than a rifle, right? 4 A: That's my recollection, yes. 5 Q: Yes. And that's confirmed on the 6 next page as well in the entry of Skinner. 7 But then... 8 9 (BRIEF PAUSE) 10 11 Q: ...towards the bottom of page 5 we 12 hear -- we have transcribed Hebblethwaite saying: 13 "Go ahead. 14 HEBBLETHWAITE: TAC 1. Go ahead." 15 That seems to be asking for a response? 16 A: I believe so. 17 Q: From TAC 1, is that the proper way to 18 interpret that, sir? 19 A: Yes. 20 Q: Okay. But then the next page, page 21 6, it says current time 10:48 and under -- under 22 Hebblethwaite it says: 23 "Copy that. Copy that. We're 24 engaging." 25 Now, you would have taken from "we're
1441 engaging" meaning that you are in the process of making 2 contact -- not actually necessarily making contact but 3 beginning the process that will end in contact with the 4 people in the parking lot, right? 5 A: Yes. 6 Q: Now, sir, in between these two (2), 7 the two (2) positions that we've looked at you were two 8 (2) to 300 metres down the road, you advance to the hydro 9 pole and then as far as the transcript here the next 10 thing we see is that you're engaging. 11 So can you take your mind back and tell us 12 what happened during that interim that got you engaging ? 13 You're marching down the road. You march a little 14 further to the next hydro pole and then you're engaging. 15 What happened? 16 A: Well, we -- we didn't engage from 300 17 metres away. 18 Q: I'm sorry, sir? 19 A: We didn't engage from three hundred 20 (300) metres away. We did not engage from three hundred 21 (300) metres away. 22 Q: No, no, obviously -- 23 A: Or 250 metres. 24 Q: That's right. So -- so you -- you 25 must have shortened that distance obviously in a way
1451 that's not reflected in these communications, is that 2 fair? 3 A: It appears that several minutes have 4 gone by through these conversations so I assume we have 5 moved forward. 6 Q: Yes, so would you give us a rough 7 estimate and we do appreciate that the distance estimates 8 are rough but a rough estimate as to how far you would 9 have been from the sandy parking lot at the point when 10 you were engaging, when Hebblethwaite would have said, 11 We're engaging? 12 Would that be still a couple hundred 13 metres, 50 metres, 10 metres? 14 A: What I interpret from that is there 15 was no physical engagement. It may have been in a -- in 16 a -- there's a bit of an assumption that maybe that's 17 when we could see to the sandy parking lot. 18 Q: I see. Well, and then that's 19 followed right away by a command from Lacroix: 20 "Keep your distance. Spread out." 21 And so. So at least at this point we can 22 take it that it was decided that you would engage the 23 occupiers right when Hebblethwaite says," We're engaging" 24 he's informing TOC you're going to be having some 25 interaction with the occupiers, correct?
1461 A: That wouldn't be my interpretation at 2 that time. 3 Q: It would not be? 4 A: No. 5 Q: What would be your interpretation? 6 A: The road was narrow. 7 Q: Yes. 8 A: And so you had to have a tendency to 9 bunch up a little bit but when contact was made and I 10 believe it was visual contact at that point the CMU was 11 spread out. 12 Q: Yes? When he said, "We're engaging," 13 that's -- that's more than saying we just see them, 14 right? 15 A: You'd have to ask them, I -- that's 16 the way I would interpret that at that point. 17 Q: Just meaning we see them? 18 A: Possible, yes. 19 Q: I'm sorry, I -- perhaps I 20 misunderstood your earlier answer, I thought you meant -- 21 COMMISSIONER SIDNEY LINDEN: That's -- 22 MR. PETER ROSENTHAL: -- I thought you 23 told us a few minutes ago that meant that you were in the 24 process at least of engaging, of doing something with 25 them, not just observing?
1471 COMMISSIONER SIDNEY LINDEN: I had the 2 impression that he said they could now see them. I don't 3 know the exact words about -- 4 MR. PETER ROSENTHAL: Well -- 5 COMMISSIONER SIDNEY LINDEN: -- that 6 visual contact. 7 MR. PETER ROSENTHAL: Well, again we'll 8 look at the transcript and see. 9 COMMISSIONER SIDNEY LINDEN: Yes, that's 10 all. 11 MR. PETER ROSENTHAL: But I would suggest 12 to, sir, that if -- if Hebblethwaite simply meant we see 13 them, he would say we see them. Engaging is more than 14 seeing, is it not? 15 COMMISSIONER SIDNEY LINDEN: Well, we 16 don't -- 17 MS. KAREN JONES: Mr. Commissioner? 18 COMMISSIONER SIDNEY LINDEN: Yes? 19 MS. KAREN JONES: Again this is a 20 situation where this Witness is being asked to speculate 21 about -- 22 COMMISSIONER SIDNEY LINDEN: What 23 somebody else says. 24 MS. KAREN JONES: -- others mean and 25 you've got --
1481 COMMISSIONER SIDNEY LINDEN: Yes. Well, 2 he was asked his -- 3 MS. KAREN JONES: -- both Officer 4 Hebblethwaite and you've got Wade Lacroix -- 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MS. KAREN JONES: -- coming here to give 7 evidence. 8 COMMISSIONER SIDNEY LINDEN: I know that. 9 MS. KAREN JONES: -- and I'm just asking, 10 Mr. Commissioner, is it going to assist you to have this 11 Witness speculate on what someone else has said -- 12 COMMISSIONER SIDNEY LINDEN: Not more 13 than once. 14 MS. KAREN JONES: -- and what they mean? 15 COMMISSIONER SIDNEY LINDEN: Not more 16 than one (1) time. 17 MR. PETER ROSENTHAL: Well maybe -- 18 COMMISSIONER SIDNEY LINDEN: He was asked 19 once and he gave an answer and that's about it. 20 MR. PETER ROSENTHAL: Mr. Commissioner, I 21 -- I would request the opportunity to respond to an 22 objection like that because -- 23 COMMISSIONER SIDNEY LINDEN: Well -- 24 MR. PETER ROSENTHAL: -- this -- this 25 appears to be the moment, sir, the moment of the
1491 beginning of the interaction that led to the death of 2 Dudley George. 3 COMMISSIONER SIDNEY LINDEN: Yes, well -- 4 MR. PETER ROSENTHAL: And -- and it says 5 we're engaging. It doesn't say we're observing. And 6 this what -- excuse me. With great respect may I just -- 7 COMMISSIONER SIDNEY LINDEN: I'm sorry. 8 Carry on. 9 MR. PETER ROSENTHAL: Thank you. Thank 10 you very much, sir. I'm sorry but -- 11 COMMISSIONER SIDNEY LINDEN: I'm sorry, 12 carry on. 13 MR. PETER ROSENTHAL: No but -- but I -- 14 I wouldn't do this if I didn't think it was a very 15 important point, sir. 16 COMMISSIONER SIDNEY LINDEN: I realize 17 that. 18 MR. PETER ROSENTHAL: And so in my 19 respectful submission, we have an officer and the first 20 officer who was there to testify who was listening to 21 these commands and marching down the road that night. 22 And he was there and Hebblethwaite said 23 we're engaging. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. PETER ROSENTHAL: And I asked him
1501 what he meant by that and we'll see what the transcript 2 said before. 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. PETER ROSENTHAL: But in any event 5 we're trying to understand how this happened. How did it 6 happen -- 7 COMMISSIONER SIDNEY LINDEN: Well. 8 MR. PETER ROSENTHAL: -- that the police 9 officers got into the confrontation with the Stoney Point 10 people and ended up killing somebody? 11 COMMISSIONER SIDNEY LINDEN: All right. 12 But you can't ask two (2) questions at once. Your 13 question you asked was what did you mean by we're 14 engaging. 15 MR. PETER ROSENTHAL: Right. 16 COMMISSIONER SIDNEY LINDEN: And I think 17 he answered that question. Now you're going to ask 18 another question. 19 MR. PETER ROSENTHAL: I think he gave -- 20 well the transcript will show. I -- I don't want to mis- 21 characterize anything so will -- will show. 22 But I -- I do want to explore that a 23 little bit further in light of the fact that that seems 24 to be the beginning of the engagement. And I -- and I 25 would like to put to him as I think that just before the
1511 objection and I don't think he got to answer, that 2 engaging shortly means more than observe because if it 3 was observing, he would say observing, wouldn't he and -- 4 COMMISSIONER SIDNEY LINDEN: Well, I 5 have -- 6 MR. PETER ROSENTHAL: -- can you 7 understand that? 8 COMMISSIONER SIDNEY LINDEN: I had the 9 impression that what he said something to the affect that 10 visual contact had been made. 11 MR. PETER ROSENTHAL: Yes. 12 COMMISSIONER SIDNEY LINDEN: Surely -- 13 MR. PETER ROSENTHAL: No he did say that 14 at one (1) point, I agree. 15 COMMISSIONER SIDNEY LINDEN: Surely 16 that's the first step of engagement. His visual contact. 17 So we were on -- 18 MR. PETER ROSENTHAL: I understand that, 19 sir. 20 COMMISSIONER SIDNEY LINDEN: -- the same 21 wave length. 22 MR. PETER ROSENTHAL: But I'm sugges -- 23 COMMISSIONER SIDNEY LINDEN: Carry on. 24 MR. PETER ROSENTHAL: -- I -- I would 25 like to suggest to him and I would like to be allowed to
1521 continue to suggest to him for just a moment or two more 2 that engaging means more than that. 3 MS. SUSAN VELLA: With all res -- with 4 respect, this is a communication from one (1) officer, 5 Hebblethwaite to -- to the Command -- to the TOC. This 6 is not a command to this officer. 7 So to ask him to speculate as to what 8 Hebblethwaite was intending to communicate to the TOC 9 when he doesn't have a specific recollection of this 10 particular comment and when we're unable to -- and when 11 he's unable to pinpoint at what point in the process this 12 was, is entirely speculative and not helpful. 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MS. SUSAN VELLA: And I'm afraid that 15 it's going to lead to -- to evidence that's unreliable 16 and that's not helpful. 17 COMMISSIONER SIDNEY LINDEN: Yes. Yes. 18 So I -- 19 MR. PETER ROSENTHAL: Perhaps I should 20 have clarified. I don't want him to speculate as to what 21 Hebblethwaite was trying to communicate to TOC. 22 I want him to assist us -- 23 COMMISSIONER SIDNEY LINDEN: But that's 24 what this is. That's what this is. Hebblethwaite's 25 communication to TOC.
1531 MR. PETER ROSENTHAL: That's right. 2 Right. But I want him to interpret what it meant to him 3 at the time and see if he can assist us in his 4 recollection as he's standing there. 5 I asked him to picture himself on the road 6 that night, he's marching down the road and he hears 7 Hebblethwaite say we're engaging. And I'm suggesting to 8 him that that must have meant that's the point at which 9 at least it was decided to engage the -- 10 COMMISSIONER SIDNEY LINDEN: I don't see 11 how this Witness can answer that question. 12 MR. PETER ROSENTHAL: Well -- I -- I'll 13 move on then if I may. 14 COMMISSIONER SIDNEY LINDEN: Thank you. 15 16 CONTINUED BY MR. PETER ROSENTHAL: 17 Q: A few -- a few lines later it says 18 "HEBBLETHWAITE: Contact squad. 19 Back up contact squad, back up." 20 You would have heard that at the time, 21 sir? 22 A: I should have heard it, yes. 23 Q: Sorry? 24 A: I -- I may have heard it, yes. 25 Q: Yes. And you understood that there
1541 was a group of the CMU that was called the Contact Squad, 2 right? 3 A: Yes. 4 Q: That evening there was a group dubbed 5 the Contact Squad for that evening? 6 A: The -- the whole CMU could be Contact 7 Squad. 8 Q: Well -- 9 A: Here it would -- 10 Q: So when you heard Hebblethwaite say, 11 "contact squad back up", you were mystified as to what he 12 was talking about? 13 A: I would assume he was talking about 14 the middle portion of the CMU. 15 Q: The middle portion of the CMU. It 16 didn't include your arrest team, right? 17 A: Generally when the unit moves, they 18 move forward together and back together. 19 Q: Well, Hebblethwaite said "contact 20 squad back up", was that an order to you, sir? 21 A: No. 22 Q: No. So contact squad did not include 23 the arrest team, is that right? 24 A: If -- if the contact squad was moving 25 back, generally everybody would move back. That's
1551 normally the way it works. 2 Q: I appreciate that. But contact squad 3 did not include the arrest team, right? 4 A: Contact squad isn't referring to the 5 arrest team, no. 6 Q: It is referring to the arrest team? 7 A: It is not. 8 Q: It's not. Thank you. Now shortly 9 after that, on this page, two-thirds (2/3's) of the way 10 down, attributed to Lacroix is: 11 "They're on the Provincial property." 12 You would have taken that to mean, would 13 you, sir, that that meant that they were in the Park 14 itself as opposed to the sandy parking lot? 15 A: Seeing that I would -- that line 16 there, I would interpret that as being they're in the 17 Park. 18 Q: You interpret it as meaning that they 19 were back in the Park, not in the sandy parking lot; is 20 that correct? 21 A: That's correct. 22 Q: And then after that, it says: 23 "Shield chatter." 24 If you look at the bottom of that page. 25 Now, can you -- so, I would like you to take your mind
1561 back, sir. You're marching down the road, contact squad 2 back up, and so on. But then apparently you're close 3 enough to, or at least some -- at least Lacroix's close 4 enough or someone's close enough to observe that they're 5 in the Park rather than in the sandy parking lot. 6 And then there's an order for shield 7 chatter. You would have heard that order? 8 A: Yes. 9 Q: But you weren't carrying a shield? 10 A: That's correct. 11 Q: So that order was not directed to 12 you, it was directed to the officer who were, 13 presumably? 14 A: That's correct. 15 Q: Now did you -- can you assist us, 16 though, in taking your mind back as to, did you, at the 17 time, see any possible purpose for shield chatter at that 18 point? 19 A: Yes. 20 Q: And what was your understanding as to 21 why shield chatter was initiated at that point? 22 A: Again, my interpretation at that 23 time, there were people out in the Park, even though that 24 doesn't say it here. That's somebody else's comments. 25 Q: But -- but this follows quite close
1571 in time, people -- Lacroix reporting that they're in -- 2 back in the Park. And there's no report of them being 3 out of the Park again, before the shield chatter, right? 4 A: I know that's what he says there, 5 yes. 6 Q: I'm sorry, sir? 7 A: That's what he says there, yes. I 8 agree -- 9 Q: Yes. 10 A: -- with that. 11 Q: Do you think -- do you think he was 12 wrong, you mean -- 13 A: No. 14 Q: -- when he said they were in the 15 Park. 16 A: No, I didn't -- I didn't say that. 17 From my vantage point, I couldn't see the front very 18 well, so. 19 Q: But -- but -- so -- sorry, you 20 understood the purpose of the shield chatter was? 21 A: Shield chatter is normally used if -- 22 for -- for -- can I give an example? 23 Q: I see. 24 A: If people were out in the -- out in 25 the parking lot, for example --
1581 Q: But can you take your mind back to 2 whatever normally is done, to September 6th, 1995. 3 You're on the road -- 4 MS. KAREN JONES: Mr. Commissioner...? 5 COMMISSIONER SIDNEY LINDEN: Finish your 6 question. You have to finish your question. 7 MS. KAREN JONES: This -- this Witness 8 has been asked a question. He's tried to answer it. He 9 said, can I give you an example? And he ought to have an 10 opportunity -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MS. KAREN JONES: -- to finish his 13 answer. 14 COMMISSIONER SIDNEY LINDEN: Well, I'm 15 not sure who's finishing who, but Mr. Rosenthal needs an 16 opportunity to finish the question. The witness 17 definitely needs an opportunity to answer it. 18 Where are we? Who's on first? 19 MR. PETER ROSENTHAL: I don't want to 20 deny this officer any -- 21 COMMISSIONER SIDNEY LINDEN: I know that. 22 MR. PETER ROSENTHAL: -- opportunities. 23 I do want to be as expeditious as possible, because I 24 have many matters to cover, sir. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
1591 2 CONTINUED BY MR. PETER ROSENTHAL: 3 Q: May I ask you the following question. 4 And I would request, if you can, that you answer the 5 question as I've -- as I pose it and I -- and you can add 6 anything else you wish to, of course. 7 But you will have an opportunity -- your 8 Counsel will re-examine you at the end of this, sir, so. 9 Now, the question I would like you to 10 answer, if you would, is: Whatever the normal practice 11 is, could you take your mind back to September 6th, 1995? 12 You're marching down East Parkway Drive, there's the 13 observation that they're in the Park and then sometime 14 after that, we don't know exact times of things -- 15 COMMISSIONER SIDNEY LINDEN: Just to be 16 fair, Mr. Rosenthal. I don't want to interrupt you and 17 make this more complicated, but the quote is: 18 "They're in the Provincial property." 19 MR. PETER ROSENTHAL: Yes. 20 COMMISSIONER SIDNEY LINDEN: It doesn't 21 say the Park. I mean -- 22 MR. PETER ROSENTHAL: No. 23 COMMISSIONER SIDNEY LINDEN: -- he says 24 it could mean the Park, but -- 25 MR. PETER ROSENTHAL: Yes, he --
1601 COMMISSIONER SIDNEY LINDEN: -- you have 2 to be careful. 3 MR. PETER ROSENTHAL: -- interpreted it 4 as meaning the Park and -- 5 COMMISSIONER SIDNEY LINDEN: Well, I 6 know, but it doesn't say the Park. So if you're going to 7 be -- 8 MR. PETER ROSENTHAL: No, no, I 9 appreciate that. But he interpreted being in the Park -- 10 COMMISSIONER SIDNEY LINDEN: Another 11 witness may interpret it a different way. So if you're-- 12 MR. PETER ROSENTHAL: I -- 13 COMMISSIONER SIDNEY LINDEN: -- going to 14 read it, you'd better read it the way -- 15 MR. PETER ROSENTHAL: Well, we'll see 16 what Lacroix says, of course. 17 COMMISSIONER SIDNEY LINDEN: I have no 18 idea what Lacroix's going to say about this. 19 MR. PETER ROSENTHAL: Right. Right, but 20 we do have Skinner interpreting it as meaning -- meaning 21 the Park. And we have this officer interpreting it as 22 meaning the Park -- 23 COMMISSIONER SIDNEY LINDEN: Did Skinner 24 say the park? I don't -- 25 MR. PETER ROSENTHAL: Yes.
1611 COMMISSIONER SIDNEY LINDEN: Skinner said 2 he had meant the Park? 3 MR. PETER ROSENTHAL: He did. 4 COMMISSIONER SIDNEY LINDEN: Okay. 5 MR. PETER ROSENTHAL: And so we have 6 those two (2) interpretations so far. We'll see what 7 Lacroix says -- 8 COMMISSIONER SIDNEY LINDEN: Okay. 9 MR. PETER ROSENTHAL: -- of course. 10 COMMISSIONER SIDNEY LINDEN: All right. 11 I'm sorry, I didn't mean to -- 12 MR. PETER ROSENTHAL: You -- 13 COMMISSIONER SIDNEY LINDEN: -- 14 interrupt. 15 MR. PETER ROSENTHAL: But in any event, 16 this officer interpreted it as in the Park, so... 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: Now, I want you to go back on the 21 road on September 6th, 1995. You're marching down the 22 road. It's dark. You have the understanding they're in 23 the Park. There's an order of shield chatter. 24 And what did you understand, sir, at that 25 time, in that very specific context, was the purpose of
1621 the shield chatter, according to your understanding? 2 A: My understanding was that it was to 3 let the people know that the CM unit was there. It was 4 way of communicating. 5 Q: I see. Thank you. Now, if we go a 6 couple of pages later in this transcript to page 8, at 7 the very top of the page: 8 "LACROIX: Get ready for it. Get 9 ready." 10 And then: 11 "Ready, ready, go. Go." 12 And then: 13 "Back, back." 14 So would you agree, sir, that this 15 obviously corresponded to the punchout, as it was called? 16 A: We skipped several pages, I just 17 wanted to look and see what it said before that so I -- 18 Q: Sorry? 19 A: -- because I'm not sure. I -- I just 20 wanted to jump back to see what was said before. 21 Q: No, certainly sir, take your time. 22 Just because I'm in a rush, it doesn't mean you have to 23 be, sir. Sorry, take your time. 24 25 (BRIEF PAUSE)
1631 A: I believe that was after the -- after 2 the punchout, I believe so. 3 Q: I'm sorry, after the...? 4 A: Was the question, was that in 5 relationship to the punchout? 6 Q: Yes. Isn't that a call for a 7 punchout? 8 A: I don't know if read where it said, 9 'punchout,' because normally -- 10 Q: No, no. No, I don't believe the 11 words, 'punchout' appear in this transcript, sir. But 12 I'm suggesting to you that when he says: 13 "Get ready for it. Get ready. [and] 14 Ready, ready, go." 15 That's the orders that are initiating the 16 punchout, right? 17 A: That -- in all likelihood that's what 18 that was, yes. 19 Q: Yes. Yes, so that's -- so we can -- 20 in that sense we can place things with respect to this 21 transcript; that's when the punchout occurs, right? 22 A: I believe so. 23 Q: Now, and your understanding of 24 'punchout' is when a group of officers go as a group, 25 often to -- say to arrest a person, and so on, but go as
1641 a group quickly towards somebody, right, to deal with 2 something? 3 A: That's fair. 4 Q: Is that a fair description of the 5 word, 'punchout?' 6 A: Yes. 7 Q: And can you tell us what was 8 happening at that moment that led to that punchout? Take 9 your mind back. You're on the road, you -- you would 10 have seen them punchout when they did punchout, right? 11 A: Yes. 12 Q: So you would have seen -- how -- how 13 many officers punched out; was it half a dozen or more? 14 A: I believe it was one (1) of the 15 contact squads. 16 Q: One (1) of the contact squads? 17 A: That's my recollection. 18 Q: And how many officers would have been 19 in that contact squad, approximately? 20 A: There's generally eight (8). 21 Q: About eight (8)? 22 A: Generally, yes. 23 Q: And so approximately eight (8) 24 officers punched out, meaning that they, as a group, 25 rushed forward, right?
1651 A: If -- if one (1) -- if one (1) 2 element punched out, yes. 3 Q: Well, yeah, at the punchout -- 4 A: Hmm hmm. 5 Q: -- that's what would have occurred; 6 some eight (8) would have rushed forward. 7 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 8 Jones...? 9 MS. KAREN JONES: Mr. Commissioner, the 10 problem with this questioning is this Witness gave 11 evidence yesterday about two (2) punchouts. And so 12 here's a situation where a scenario's been put to him and 13 he's speculating on what's going on, and it's not clear 14 from the questioning, from the transcript, or for the 15 evidence, what exactly is being talked about. 16 And frankly, Mr. Commissioner, I don't 17 know if this is going to give you any assistance. 18 COMMISSIONER SIDNEY LINDEN: Well -- 19 MR. PETER ROSENTHAL: With great respect, 20 Mr. Commissioner, I think it was clear this is the first 21 punchout. But, in any event, I'll -- I'll clarify that. 22 COMMISSIONER SIDNEY LINDEN: All right. 23 MR. PETER ROSENTHAL: There didn't need 24 to be that much of a preference, there might have been 25 just a request to clarify which punchout we're talking
1661 about. 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: So, sir, when you were describing the 5 events a few moments ago, were you talking about the 6 first or the second of the punchouts that you observed? 7 A: Right here? 8 Q: Right here. 9 A: I believe it was -- it was -- may 10 have been the first punchout, I don't know. 11 Q: Must have been the first punchout, 12 right? 13 A: It's possible. 14 Q: Okay. So go back -- so just to 15 clarify we're talking about the first punchout, okay? 16 And there would have been one (1) contact squad, probably 17 consisting of eight (8) persons who would have gone 18 forward quickly, right? 19 And you would have observed from the back, 20 as part of the arrest team waiting in the back to see 21 what task you had to do, you would have observed that in 22 front of you, right? 23 A: Yeah, I'm not -- I -- I don't know 24 who punched out or how many of them, for sure. 25 COMMISSIONER SIDNEY LINDEN: Yes. If you
1671 don't know, you have to say so, because you're kind of 2 giving part of an answer which allows him to continue to 3 ask questions. 4 MR. PETER ROSENTHAL: Yes. 5 COMMISSIONER SIDNEY LINDEN: If you don't 6 know, you don't know. 7 8 CONTINUED BY MR. PETER ROSENTHAL: 9 Q: Right. But if -- am I correct that 10 your evidence is what you do know is that a Contact Squad 11 punched out, you don't know for sure who was in it and 12 you think it probably had about eight (8) people. Is 13 that a fair assumption? 14 A: I believe officer punched out. How 15 many I'd be speculating beyond -- 16 Q: I see, okay. And -- but 17 approximately eight (8) would have punched out, you don't 18 which squad or -- 19 COMMISSIONER SIDNEY LINDEN: He said he-- 20 THE WITNESS: I don't recall. 21 22 CONTINUED BY MR. PETER ROSENTHAL: 23 Q: Okay. Thank you. In any event, I am 24 asking you to, as best you can, of course, it's many 25 years later, recall it in the sense of trying to picture
1681 yourself on that road that night. 2 And this would have happened in front of 3 you then, right? 4 A: That's correct. 5 Q: And can you give us an estimate as to 6 how far in front of you the -- the officers would have 7 been, just as they started the punchout? 8 A: I believe I said before that I was 9 thirty (30) or fifty (50) metres back. 10 Q: From -- from those officers, do you 11 mean? Or from -- 12 A: Not -- 13 Q: I didn't know the thirty (30) to 14 fifty (50) meant from those officers. I thought it meant 15 from the sandy parking lot. But I might have 16 misunderstood you. 17 A: From the front of the CMU unit, what 18 precipitated our movement back, which I believe 19 precipitated the punchout, was we were -- we got a 20 barrage of rocks. 21 Sorry, that was after the, I believe, the 22 first punchout. We'd dropped back a little bit to create 23 some distance. 24 Q: Right. So the rocks were -- sorry, 25 the rocks were after or before the first punchout?
1691 A: I believe they were after the first 2 one. 3 Q: After the first punchout. So that -- 4 that's what I thought but then my hearing is bad. I'm 5 sorry, sir, I might have misunderstood. 6 So -- okay, so there's a punchout. You 7 yourself don't know the reason for the punchout, right? 8 Or do you? 9 A: There were people now in the sandy 10 parking lot. 11 Q: I see. So you could observe people 12 in the sandy parking lot and then a punchout took place 13 in front of you, directed at those people who were in the 14 sandy parking lot; is that correct. 15 A: That's correct. 16 Q: And then that punchout, what happened 17 to it? How did it end? 18 A: People in the parking lot left the 19 parking lot and went back, from what I could see, into 20 the Park. 21 Q: I see. Okay. 22 A: I assume they went into the Park. 23 Q: Right. So officers punchout, the 24 people in the parking lot, seeing the officers running at 25 them, run back into the Park, right?
1701 A: That's what I believe happened. 2 Q: And then the punching out officers 3 backup? 4 A: That's correct. 5 Q: And people in the Park start throwing 6 rocks. 7 A: While we were withdrawing, yes. 8 Q: As -- as the -- the, formally, 9 punchout squad was retreating, rocks started flying? 10 A: My recollection is the whole unit was 11 moving back. 12 Q: As the whole unit was moving back, 13 rocks started flying? 14 A: That's my recollection. 15 Q: Okay. And then -- well that might 16 correspond then, I presume, to page 8 here where it says, 17 Back, back, back, attributed to Lacroix. 18 A: It's possible. 19 Q: But then it's hard, for me to tell at 20 least, from this transcript, what happened then. Now -- 21 so -- but you were there. 22 Now, the first punching out officers back 23 up, rocks were being thrown. And then what happened, 24 from your observations, sir, right after that? 25 A: My interpretation at that time was we
1711 were leaving. 2 Q: Yes. 3 A: And then the rock throwing and more 4 people entering the parking lot precipitated another 5 response from the CMU. 6 Q: Another response being the second 7 punchout? 8 A: That's correct. 9 Q: I see. So it was your impression 10 that you were leaving, but there was no order to march 11 back down the road? 12 A: No. That was my impression that we 13 were leaving. 14 Q: Yes. 15 A: Yes. 16 Q: So the entire CMU, including the 17 arrest team, back up a bit from the sanding parking lot, 18 rocks are being thrown, and then some people from the 19 Park came into the sandy parking lot, and there was a 20 second punchout; that's your observation? 21 A: That's my recollection, yes. 22 Q: And the second punchout is, 23 undoubtedly, I gather from your evidence, the one that 24 involved Cecil Bernard George, the person that you later 25 came to know by that name, right?
1721 A: That's correct. 2 Q: Sir, I'm not sure what time you wish 3 to break for lunch. I'm in your hands. 4 COMMISSIONER SIDNEY LINDEN: I would like 5 you to -- 6 MR. PETER ROSENTHAL: This would be a 7 possible breaking point, but I can continue, if you like. 8 COMMISSIONER SIDNEY LINDEN: Well, if 9 it's possible to finish before lunch, I'd like you to 10 continue. 11 MR. PETER ROSENTHAL: Well, sir, I did 12 estimate two (2) hours and -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. PETER ROSENTHAL: -- I've had a lot 15 of interruptions and -- but I -- I think I have about an 16 hour to go. I'm happy to go, if... 17 COMMISSIONER SIDNEY LINDEN: Shall we 18 break for lunch? 19 MR. PETER ROSENTHAL: I'm in your hands, 20 sir. I -- 21 COMMISSIONER SIDNEY LINDEN: No, I 22 understand. I'm looking to see where the day is, where 23 the other estimates are. We have to make sure that we 24 finish this Witness today. I think we will. 25 Yes, Mr. Millar, do you have something --
1731 MR. DERRY MILLAR: Sir, I just -- I'm not 2 -- I think it's appropriate to break for lunch, but I 3 would just ask, if I can ask My Friends if they could 4 tell me if their estimate -- we're trying to plan for 5 tomorrow -- 6 COMMISSIONER SIDNEY LINDEN: Yes, I 7 understand that. 8 MR. DERRY MILLAR: -- and for Mr. 9 Hebblethwaite. 10 COMMISSIONER SIDNEY LINDEN: Whether -- 11 MR. DERRY MILLAR: My Friend Mr. 12 Rosenthal has an hour -- 13 COMMISSIONER SIDNEY LINDEN: Left. 14 MR. DERRY MILLAR: -- left, and if my 15 other Friends are -- if they could just tell me if they 16 still think they're at the same -- 17 COMMISSIONER SIDNEY LINDEN: Yes. Mr. 18 Scullion originally estimated forty-five (45) minutes. 19 Is that still reasonably accurate? 20 MR. KEVIN SCULLION: It's still 21 reasonably accurate. 22 COMMISSIONER SIDNEY LINDEN: And Mr. 23 Falconer would be the only one left, other than Ms. Jones 24 estimated ninety (90) minutes. 25 MR. JULIAN FALCONER: It's still
1741 accurate. 2 COMMISSIONER SIDNEY LINDEN: Still 3 accurate? 4 MR. DERRY MILLAR: Thank you very much, 5 sir. 6 COMMISSIONER SIDNEY LINDEN: Thank you 7 very much. So we'll take a break for lunch now. 8 MR. PETER ROSENTHAL: Thank you, Mr. 9 Commissioner. 10 THE REGISTRAR: This Inquiry stands 11 adjourned until 1:15. 12 13 --- Upon recessing at 12:13 p.m. 14 --- Upon resuming at 1:16 p.m. 15 16 THE REGISTRAR: This Inquiry is now 17 resumed, please be seated. 18 MR. DERRY MILLAR: Commissioner, good 19 afternoon. 20 COMMISSIONER SIDNEY LINDEN: Good 21 afternoon. 22 MR. DERRY MILLAR: I just wanted to make 23 a short announcement for the benefit of everyone. We are 24 going to -- when Staff Sergeant Jacklin is done we will 25 move onto Sergeant Huntley and we will not call George
1751 Hebblethwaite this week. 2 Sergeant Huntley will be the last witness 3 and it may very well be perhaps more efficient, in any 4 event, because when we come back on May 8th our first 5 witness will be Wade Lacroix, and then followed by Mr. -- 6 Sergeant Hebblethwaite. 7 COMMISSIONER SIDNEY LINDEN: Thank you, 8 Mr. Millar. 9 MR. PETER ROSENTHAL: Thank you. Good 10 afternoon, Commissioner. 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: Good afternoon, Officer. 15 A: Afternoon. 16 Q: Have you seen Wade Lacroix recently, 17 by the way? 18 A: No. 19 Q: I see. Okay. Thank you. I'm going 20 to come back to the punchout that involved Cecil Bernard 21 George in a few minutes. But you told us that that 22 occurred and then after that the school bus came out. 23 And I'd like to ask you some questions 24 about the school bus, okay? 25 A: Yes.
1761 Q: Now, if I understood correctly, you 2 said when the school bus came out it was where you marked 3 an 'X5' there, is that... 4 A: No. 5 Q: Or 'X' -- sorry, could you remind me 6 of what you say the route of the school bus was? 7 A: I believe the school bus came out of 8 that area there. 9 Q: Right. 10 A: And travelled -- which -- would you 11 want the route? 12 Q: Just -- just -- yeah, just roughly, 13 yes. Thank you. 14 A: When I first saw it that's where I 15 saw it, before it was mobile, in that area. 16 Q: You're pointing to your -- 17 A: On the other side. 18 Q: -- 'X1' on -- on your diagram. 19 A: 'X3'. 20 Q: X? 21 A: I've got the same problem. 22 Q: Okay. Thank you. Yes? 23 A: The -- that's where I saw it 24 stationary. 25 Q: Right.
1771 A: When I saw it mobile -- 2 Q: Yes? 3 A: -- it was out in this area here. 4 Q: Okay. And then it proceeded -- 5 A: In the sandy parking lot. 6 Q: -- as we face the diagram to the 7 left, right? It proceeded that way down East Parkway 8 Drive? 9 A: Down through here, yes. 10 Q: And then when it got onto East 11 Parkway Drive it was to the driver's side of East Parkway 12 Drive, right, to the -- to the left of East Parkway Drive 13 as you're going down? 14 A: That's correct. 15 Q: And, in fact, was it off the road 16 actually, or -- or just at the very edge of the roadway? 17 A: I would describe it as the driver's 18 wheel side of the bus went off the road and partially 19 into that ditch. 20 Q: I see. Okay. And then -- you told 21 us then it continued further down. When it continued 22 further down, did it also stay on the left side of the 23 road? 24 A: I believe it went to the middle of 25 the road at that point.
1781 Q: The middle of the road? 2 A: Yes, that's my recollection. 3 Q: I see. And now you were on the non- 4 ditch side of the bus at all times, is that correct; in 5 other words, the passenger side of the bus? 6 A: I was in the center of the bus 7 initially -- or in the center of the road. 8 Q: Yes? 9 A: That's why I say the bus was in the 10 middle. 11 Q: So when you were in the center of the 12 road -- as the bus went to the ditch, you mean? 13 A: The bus went through the ditch in 14 this location here. 15 Q: Yes. 16 A: At that time I was in the middle of 17 the road. 18 Q: Yes. So you would have been on the 19 passenger side of the bus. 20 A: No. Yes, yes. 21 Q: Yes. 22 A: Yes, that's fair. 23 Q: The passenger side of the bus, not 24 the driver's side? 25 A: That's correct.
1791 Q: Of course a school bus has passenger 2 seats on both sides, but we mean the non-driver side when 3 we say the passenger side? 4 A: That's correct. 5 Q: And -- and then as the -- and then 6 the bus went further down the road and went beyond you, 7 did it? 8 A: Yes, it did. 9 Q: You didn't run along with the bus 10 that entire time? 11 A: Yes, I did. 12 Q: Oh, you did? 13 A: Yes. 14 Q: So you stayed on the passenger side 15 of the bus, you ran down the road as the bus was driving 16 down the road; is that correct? 17 Or perhaps it wasn't going fast -- fast 18 enough for you to have to run; perhaps you just walked 19 briskly. 20 A: No, I believe I testified that I was 21 running, that's what I -- 10 kilometres an hour or so, 22 10/15 kilometres an hour. 23 Q: Okay. And you -- you came along with 24 the bus and you were roughly in the middle of the bus as 25 far as front to back, I gather; is that correct?
1801 A: When the bus first came towards me -- 2 Q: Yes. 3 A: -- I was in the middle of the road, 4 so I was at the center of the bus. As the bus approached 5 my location, I moved to the passenger side of the bus -- 6 Q: Right. 7 A: -- allowed the bus to go past me -- 8 Q: Right. 9 A: -- and then I got in behind the bus. 10 Q: Then you got in behind the bus. 11 A: That's correct. 12 Q: I see. So you weren't on the 13 passenger side then, you were behind the bus for a while 14 as it went down the road, when you were -- 15 A: When I was -- when I was behind the 16 bus I was at the -- the back door of the bus. 17 Q: I see. And that was as it was going 18 down the road? 19 A: That's correct. 20 Q: And then -- so -- so -- at about what 21 point did you get to the back as opposed to being on the 22 side? 23 A: When the bus passed me. 24 Q: I see. Okay. So you just -- you 25 didn't -- but then you ran along with the bus and you ran
1811 at the back -- from the back of the bus then, did you? 2 A: That's correct. 3 Q: I see. Okay. And then when the bus 4 retreated you still were on the passenger of the bus, as 5 it came back the other way; is that right? 6 A: I was up by the passenger door, yes. 7 Q: Yes. 8 A: The passenger side. 9 Q: Yes. So every time the bus passed 10 you going in either direction, you were on the passenger 11 side. You were never on the driver's side? 12 A: That's correct. 13 Q: And you didn't see, at any point, any 14 gunfire emanating from the bus; isn't that correct? 15 A: That's correct. 16 Q: What you saw was officers firing, but 17 not at the bus? 18 A: That was after -- yes, that's after 19 the bus was backed up. 20 Q: After the bus -- oh, that was after 21 the bus was already fully back into Park? 22 A: No. 23 Q: No. As the bus was backing up, you 24 saw firing? 25 A: I saw muzzle flash in -- in that
1821 period of time from the bus stopping from the time the 2 bus was backing up at -- at that time. 3 Q: That -- I see, okay. That's when you 4 saw a muzzle flash? 5 A: That's correct. 6 Q: You saw one (1) muzzle flash this 7 evening, right? 8 A: That's right. 9 Q: A total of one (1)? 10 A: Yes. 11 Q: But then you also saw other officers 12 firing, right? 13 A: I didn't see other officers firing, 14 no. 15 Q: I see. Now could you please look at 16 Tab 25, which is your statement, which is now Exhibit P- 17 1415, Inquiry Document 2003607, your statement the next 18 day to Detective Constable Donaldson. 19 If you could turn to page 5 of that 20 statement, please? 21 A: Yes. 22 Q: About -- just below the middle of the 23 page: 24 "I heard the word 'gun' and then heard 25 gunshots. I didn't see any gunfire
1831 from the bus on the side I was on, 2 which was the passenger side. 3 I could see gunfire from our people, 4 but it wasn't directed at the bus." 5 A: That's correct. 6 Q: So on September 7 you did report that 7 you could see gunfire from our people, right? 8 A: That's correct. 9 Q: And that meant police officers, 10 right? 11 A: Yes. 12 Q: And that meant several -- at least 13 several police officers you saw gunfire from, right? 14 A: That's not -- no. 15 Q: I see. 16 A: It was from our people. I -- 17 Q: Okay. 18 A: It wasn't meant to be -- 19 Q: Well then it wasn't more than one (1) 20 officer, it was only one (1) officer? 21 A: Yes, that -- that I saw the flash 22 from, it was from one (1) officer. 23 Q: I see. So the muzzle flash was from 24 a police officer's firearm? 25 A: I'm not sure of that. I believe -- I
1841 -- I don't know. 2 Q: Okay. You saw one (1) muzzle flash 3 in the course of the evening, right; that's for sure? 4 A: That's correct. 5 Q: And you don't know whether that 6 muzzle flash was from a police officer or from some other 7 -- you don't know where -- where it was from; is that 8 your evidence? 9 A: Yesterday I said I saw muzzle flash 10 coming from the south ditch. 11 Q: And what do you saying today? 12 A: That's what I'm saying today. 13 Q: Well, was that -- and is that what 14 you meant when you said, Firing from our -- gunfire from 15 our people? 16 A: I assume it was from our people -- 17 one of our members. 18 Q: You assume the muzzle flash -- 19 A: I'm not -- 20 Q: -- was from one of your people, too? 21 A: I assumed it was, yes. 22 Q: Yeah, okay. So you saw muzzle flash 23 that you assumed was from a police officer, but then I 24 would put it to you, sir, that when you said, I could see 25 gunfire from our people, that obviously meant more than
1851 one (1) police officer firing one (1) shot? 2 A: Not -- not as far as what I saw. 3 There was a number of rounds that were heard being fired, 4 so that's -- 5 Q: But it says -- sir, it says, I could 6 see gunfire from our people and you're saying that just 7 meant one (1) shot? 8 COMMISSIONER SIDNEY LINDEN: Mr. 9 Rosenthal, I don't think he had finished answering. I 10 couldn't tell. 11 MR. PETER ROSENTHAL: No -- 12 COMMISSIONER SIDNEY LINDEN: Were you 13 finished? 14 MR. PETER ROSENTHAL: -- he did finish, 15 with respect, I believe, Mr. Commissioner. 16 THE WITNESS: I was just trying to 17 clarify the point, Your Honour. 18 COMMISSIONER SIDNEY LINDEN: No, I know 19 that, but as long as you had finished your answer. Did 20 you? 21 THE WITNESS: Yeah, I was satisfied with 22 the answer that -- 23 COMMISSIONER SIDNEY LINDEN: Okay. 24 MR. PETER ROSENTHAL: Yeah -- 25 THE WITNESS: I saw --
1861 MR. PETER ROSENTHAL: -- he said not that 2 he saw. 3 COMMISSIONER SIDNEY LINDEN: All right. 4 MR. PETER ROSENTHAL: And then I was -- 5 COMMISSIONER SIDNEY LINDEN: Okay. 6 MR. PETER ROSENTHAL: -- going back to 7 say it says, I could see. 8 THE WITNESS: I told you, I saw a muzzle 9 flash. 10 11 CONTINUED BY MR. PETER ROSENTHAL: 12 Q: But you told the officer on September 13 7, I could see gunfire from our people. That meant more 14 than one (1) muzzle flash, sir, didn't it? 15 A: No. 16 Q: It didn't, I see. And you didn't 17 mention muzzle flash at all in this interview, did you? 18 A: But that was pretty general, my 19 comment, that was made. 20 Q: Did you write down 'muzzle flash' in 21 your notes? 22 A: These were my notes. 23 Q: These were your notes? 24 A: I did not have an opportunity to make 25 notes after that time that were...
1871 Q: You never had an opportunity after 2 that time to make notes? 3 A: After I gave this statement -- 4 Q: Yes. 5 A: -- I provide the statement. My 6 notebook referred to the statement I gave. 7 Q: Yes. And you felt that was adequate? 8 A: Yes, I did at the time. 9 Q: I see. At the time. Did you 10 subsequently learn it wasn't adequate? 11 A: I don't believe so, under the 12 circumstances... 13 Q: Now, in a situation such as you were 14 in, it was a rather chaotic situation; is that fair? 15 A: That would be very fair, yes. 16 Q: At the time we're talking about the 17 bus going, officers all around, and so on; it was 18 chaotic, right? 19 A: It was. 20 Q: And in such a situation, if an 21 officer were to draw a gun, with the intention of 22 possibly firing it, he might well yell out, Gun, to warn 23 fellow officers that they better be prepared there might 24 be some gunfire, right? 25 A: I believe I said that --
1881 Q: Isn't that fair? 2 A: -- yesterday, yes. 3 Q: Yes. So when you heard the word 4 'gun' it might have meant that an officer was warning his 5 fellow officers, including you, that he has a gun out and 6 he might be shooting, right? 7 A: That's not the normal, prop -- if an 8 officer says 'gun' it's normally not to let you know he 9 has his gun out. But there's an assumption he will be 10 taking his gun out. 11 Q: Sorry, there's an assumption...? 12 A: If an officer yells 'gun' -- 13 Q: Yes. 14 A: -- my training is -- my experience 15 is, in training, is if somebody yells 'gun' that's the 16 internat -- or the signal that the -- that somebody else 17 has a gun. 18 And -- 19 Q: Well, for example, suppose another 20 officer had a gun would you want to be warned that an 21 officer over there was pointing a gun? 22 You'd want to know that, wouldn't you, if 23 you were on the scene? 24 A: We never yell 'gun' when another 25 officer pulls his gun. Now -- just --
1891 Q: What would you yell? 2 A: -- because he has it out. If I 3 pulled my gun out, I'd yell, Police, don't move. 4 Q: You'd yell, Police, don't move? 5 A: Because I'm drawing my gun for a 6 purpose. 7 Q: I see. Did you hear anybody yell, 8 Police, don't move, that night? 9 A: I don't recall that. 10 Q: No. 11 12 (BRIEF PAUSE) 13 14 Q: Okay. Now, you told Ms. Vella 15 yesterday that you would have an obligation if you, as a 16 police officer, saw a fellow police officer using 17 excessive force in making an arrest, right? 18 A: That's correct. 19 Q: If you determined -- if you were 20 watching an arrest and you determined that the officer 21 was using excessive force, you would have an obligation 22 to report that, right? 23 A: Yes. 24 Q: And to whom would you report it? 25 A: To my supervisor.
1901 Q: Your supervisor? So in this case, 2 that would have been who? 3 A: Senior leaders, Staff Sergeant 4 Lacroix. 5 Q: Lacroix, I see. Now, how long have 6 you been on the Force, sir? 7 A: Now or then? 8 Q: Now. 9 A: Twenty-two (22) years. 10 Q: A long time? 11 A: Fairly long. 12 Q: You've seen many, many arrests in 13 that period have you, sir? 14 A: Many, yes. 15 Q: Thousands? 16 A: I doubt if it was thousands. 17 Q: Certainly hundreds? 18 A: Hundreds. 19 Q: Have you ever reported an officer for 20 using excessive force in making an arrest in the course 21 of your twenty-two (22) years? 22 A: No, because I don't believe I've ever 23 seen an officer use excessive force in their arrest. 24 Q: Are you aware in your twenty-two (22) 25 years on the Force of any officer reporting any officer
1911 for excessive use of force? 2 A: I can't comment on that. 3 Q: Are you aware of any such, sir? 4 A: Specifically, can I call? 5 Q: Specifically? 6 A: No. 7 Q: Or generally? It's never happened in 8 your twenty-two (2) years as far as you're aware, isn't 9 that so, sir? 10 A: In -- in policing in general or the 11 policing that I've been involved with? 12 Q: Anything that you have knowledge of. 13 No officer said to you, I reported so and so because he 14 was using excessive force and you never heard about an 15 officer being disciplined as a result of any such report, 16 right? 17 A: Oh, sure, I've -- I've heard of cases 18 of... 19 Q: Of an officer being disciplined in a 20 situation where it was reported by a fellow officer that 21 he had used excessive use of force? 22 A: I... 23 Q: You never heard of such a case did 24 you? Did you, sir? 25 A: Yeah, I guess I have.
1921 Q: You have. You've heard of a case 2 where one (1) officer reported another officer as using 3 excessive use of force? 4 A: And, you know, I've been in policing 5 twenty-two (22) years, you hear a lot of stories but can 6 I say who, when, where, no. 7 Q: But you're certain that you've heard 8 of a situation where one (1) officer reported another 9 one, not where excessive force was found because a 10 civilian reported it but where an officer reported it, 11 sir? 12 A: I believe so, yes. 13 Q: You believe so? 14 A: Yes. 15 Q: You were wearing the same kind of 16 boots as all the other CMU officers that night, sir, were 17 you? 18 A: I don't know what kind of boots they 19 were wearing but there's a standard boot we were issued. 20 Q: A standard boot that everybody would 21 be issued who was going to be in the CMU? 22 A: Yes. 23 Q: And does that boot have a steel toe 24 in it, sir? 25 A: No.
1931 Q: It doesn't have a steel toe? 2 A: No. 3 Q: Is it a heavy boot? 4 A: It is a -- it's a high top leather 5 boot. 6 Q: I see. Are those same boots in -- in 7 use today as they were ten (10) years ago? 8 A: Not for crowd management, no. 9 Q: I'm sorry? 10 A: Not for crowd management, no. 11 Q: I see. In what way has it changed? 12 A: In 1995 when I was a member of ERT 13 the boot that we wore was the same boot that officers on 14 the road wore that were involved in other duties. They 15 were a Prospector boot. They were leather, no steel 16 toe -- 17 Q: I see. 18 A: No steel shank. Today crowd 19 management boots have added protection in them. 20 Q: So now they -- now they wear steel 21 toed boots? 22 A: The -- I believe so. 23 Q: Now, you say that you saw Cecil 24 Bernard George lying on the ground, right? 25 A: That's correct.
1941 Q: And you saw several officers around 2 him? 3 A: That's correct. 4 Q: And one (1) officer kick him? 5 A: Yes. 6 Q: And how many times did that officer 7 kick him that you observed? 8 A: When I got there there was one (1) 9 kick. 10 Q: Just one (1) kick? 11 A: That's correct. 12 Q: And what happened after that kick? 13 A: What happened after that kick? The 14 arrest team was there. I moved that officer forward and 15 then at that time moved forward myself to create a 16 protective shield. 17 Q: I see. And you said Cecil Bernard 18 George was lying on the ground kicking his feet, right? 19 A: That is correct. 20 Q: And in your view that justified the 21 officer kicking him back, right; that's what you told us? 22 A: My interpretation at the time -- 23 Q: Yes. 24 A: -- was he was trying to apprehend the 25 person --
1951 Q: Yes? 2 A: -- and the use of force he used was a 3 kick. 4 Q: Yes. And you receive training in use 5 of force as a police officer, right? 6 A: That is correct. 7 Q: They have like a wheel where they 8 show different levels of force on, right? 9 A: It's called the Use of Force 10 Curriculum, yes. 11 Q: Use of Force curriculum? 12 A: Yes. 13 Q: It's a circular curriculum? 14 A: That's correct. 15 Q: Different colours for different 16 sections and so on, right? 17 A: That's correct. 18 Q: Batons would be on there somewhere? 19 A: That's correct. 20 Q: Pepper spray? 21 A: Yes. 22 Q: And firearms, the most serious? 23 A: Lethal force is, yes. 24 Q: Lethal force. Is there kicking on 25 there, somewhere?
1961 A: Yes, there is. 2 Q: There is kicking? 3 A: It doesn't say kicking. 4 Q: I'm sorry. 5 A: It doesn't say kicking. 6 Q: It doesn't say kicking. 7 A: But kicking is in there, yes. 8 Q: Kicking is on there? 9 A: No. I said kicking isn't stated. 10 Firearm -- lethal force is on there as well. 11 Q: Yes. 12 A: It doesn't say firearm. 13 Q: Oh, I'm sorry. So what -- what does 14 it say that reflects kicking as a possible use of force? 15 A: When you have open hand techniques 16 and then hard techniques where the baton, elbow strikes, 17 kicks. My training, yes, we are trained to use our 18 hands, elbow strikes, which includes kicks. 19 Q: You -- your training including 20 kicking? 21 A: Absolutely. 22 Q: I see. So in the course of your 23 training you kicked at some, like dummies and things like 24 that to practice your kicks? 25 A: That is right.
1971 Q: I see. Okay. Now, if someone is 2 lying on the ground kicking at an officer -- well let me 3 ask a more general question. 4 When you use force against it -- it's 5 reluctant -- you use force reluctantly against people? 6 Only if necessary, right? Is that a fair, general 7 proposition? 8 A: If necessary, yes. 9 Q: It's only if necessary. You don't 10 want to gratuitously use force, right? 11 A: Correct. 12 Q: And if you can deal with a situation 13 without using force, you would try to do it without using 14 force, right, in general? 15 A: Absolutely. 16 Q: And if you have to use some force, 17 you would try and use as little force as possible to 18 accomplish what's required, right? 19 A: The minimum amount of force, yes. 20 Q: Yes. Now in this situation, a man's 21 lying on the ground, with several officers around him, 22 right? Right? 23 A: Correct. 24 Q: Would not the several officers be 25 able to just back up a couple of feet and avoid his
1981 kicks? 2 A: Sure. 3 Q: Sure. And he didn't have much 4 prospect of escaping or anything then did he? 5 A: They were -- they were trying to 6 affect arrest at the time which required them to 7 physically restrain the person. 8 Q: Yes. But instead of kicking him 9 couldn't you just back up a couple of feet? 10 A: The situation at that time it was 11 imperative that the person be removed from the area for 12 everybody's safety. 13 Q: Was it imperative that he be kicked 14 in the process of removal? 15 A: You'd have to ask other officers. I 16 can't determine -- 17 Q: Sir, you -- you said it was. 18 A: The use of force? 19 Q: Under oath here. 20 A: Yes, the use of force, that was an 21 option, was a kick. 22 Q: The expression kicking a man when 23 he's down never occurred to you in the course of this, 24 sir? 25 A: No, not at all.
1991 Q: It didn't occur to you? 2 A: No. 3 4 (BRIEF PAUSE) 5 6 Q: Were you a witness at the trial at 7 Ken Deane, sir? 8 A: I was not. 9 Q: You were not. Now if you could turn 10 to Tab 31 please. Tab 31 is now Exhibit P-1400, it's 11 Inquiry Document 2005327. 12 Oh I'm sorry. Sorry, Mr. Commissioner, I 13 -- I omitted an important thing. 14 There was -- excuse me, Officer, I want to 15 do something else first. 16 When Cecil Bernard George was placed in 17 the van, your evidence today was that you don't know if 18 he was conscious or not conscious, right? 19 A: I said I couldn't make the 20 determination because of -- 21 Q: Because you couldn't make a 22 determination. But yesterday you said something quite 23 different, right? 24 A: Not that I recall. 25 Q: You said yesterday -- if we could
2001 please look at yesterday's transcript at page 277? 2 3 (BRIEF PAUSE) 4 5 COMMISSIONER SIDNEY LINDEN: Opening it 6 up on the screen so you can see it. 7 8 (BRIEF PAUSE) 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: And I should like to look at lines 12 22 to 24 of that please. At 22, you were asked the 13 question: 14 "And what was your observation?" 15 And you answer: 16 "I'm not a medical doctor but we -- he 17 -- when we got him to the rear, I would 18 say he was -- he was still, but I 19 believe he was conscious." 20 And then continuing -- sorry, oh, sorry: 21 "And what was -- what's the basis of 22 your belief that he was conscious? 23 A: Just that he was -- he was still 24 moving, he was still making some noise. 25 But it appeared to me at that point
2011 he'd kind of given up, like, fighting; 2 that was my impression." 3 So yesterday you told us you believed he 4 was conscious, right? 5 A: I said I believe he was conscious, 6 which means he could be conscious or unconscious. 7 Q: Yes. You said you believed he was 8 conscious, but it was only when Ms. Johnson confronted 9 you with your previous statement where you said he was 10 unconscious, that you changed to not knowing which it 11 was; isn't that fair, sir? 12 A: And I -- I could never determine if 13 he was conscious or cont -- conscious or unconscious. 14 Q: That's not what you said yesterday. 15 You said you believed he was conscious. 16 A: It was a belief by his -- by his 17 movements and some of the noise he was making. 18 Q: And when you made this statement 19 that's at Tab 30, I won't necessarily turn you to it 20 again, Ms. Johnson -- you said he was not conscious, 21 right? 22 23 (BRIEF PAUSE) 24 25 A: Tab 30, here?
2021 Q: Do you want to -- that's what Ms. 2 Johnson confronted you with and then you ended up saying 3 you don't know. I can -- 4 A: I could never make an accurate 5 determination by my observations. 6 Q: Okay. Now, just ask one other thing 7 about Cecil Bernard George. In one of your statements, 8 I'll turn you to it if necessary, but one of the -- you 9 indicated that one (1) of the guys meaning, presumably, 10 one (1) of the police officers indicated they knew who 11 Cecil Bernard George was. 12 Do you recall that, sir? 13 Or I'll turn you to it if you wish, at Tab 14 27, which is your evidence at the Bernard George trial. 15 It's Exhibit P-1419. If you turn, please, 16 to page 302. 17 18 (BRIEF PAUSE) 19 20 Q: At line 14. Well, we should begin, 21 perhaps, at line 17 or so with the question: 22 "In other words, did you know the 23 person who you were dealing with then 24 was Cecil Bernard George? 25 A: Oh, no. Only through a
2031 conversation I had with one of the guys 2 that I knew who it was because he knew 3 him and that was at the time there was 4 a quick conversation and this guy said 5 to me who he was. That was the first 6 time I heard his name there. " 7 Now, it wasn't relevant at the trial of 8 Cecil Bernard George, so that's why you weren't asked, 9 but I want to ask you now, who was that guy who told you? 10 A: I don't recall who it was. I'd be 11 speculating. 12 Q: Was it a member of your arrest team? 13 A: I don't recall. 14 15 (BRIEF PAUSE) 16 17 Q: Sorry, now if we could please turn to 18 Tab 31. 19 20 (BRIEF PAUSE) 21 22 Q: That's P-1400. And this is your 23 Affidavit for the Court of Appeal in the Deane matter 24 which you testified about yesterday. 25 Now, I want to ask you first, how did you
2041 come to make such an Affidavit, sir? 2 A: I believe I went to London. I was 3 requested to go to London to provide -- 4 Q: Who made that request? 5 A: I don't recall who made the request. 6 Q: There was a former Ontario Police 7 Deputy Commissioner, I believe, named Pughs (phonetic) or 8 something like that, sorry. 9 But was -- was there some investigator 10 that asked you to attend, sir? 11 A: I believe I gave the Affidavit to Ron 12 Piers. 13 14 (BRIEF PAUSE) 15 16 Q: Now, what about the -- Inspector 17 Goodall? Was he involved in your doing this someway? 18 A: I don't recall how I ended or how I 19 got to, what directions I had to -- that led me to giving 20 this statement. 21 Q: You were told that you might have 22 some evidence that would be of assistance to Mr. Deane, 23 right? 24 A: True. 25 Q: And what was the nature of the
2051 evidence that was thought to be helpful to Mr. Deane? 2 A: When I received the request? 3 Q: Yes. 4 A: I don't know. 5 Q: Well, didn't you learn at that time, 6 sir, that one of the issues was whether or not Mr. Deane 7 had seen a muzzle flash before he fired? 8 A: It's possible. 9 Q: You learned -- you knew that, right? 10 You knew that was an issue. 11 A: I don't know. 12 13 (BRIEF PAUSE) 14 15 Q: Now, sir, if you look at paragraph 8 16 of this document -- well, perhaps we should look at 17 paragraph 7 first: 18 "I heard the word 'gun' and heard 19 gunshots." 20 And there you say: 21 "I concluded that Native persons had 22 been observed with a gun and that we 23 were being warned. I'm not sure where 24 the shots were coming from, but I knew 25 they were behind me which was north. I
2061 did not see any gunfire from the 2 passenger side of the bus." 3 And then paragraph 8: 4 "After the bus had passed my position 5 and reversed I remembered seeing at 6 least one (1) muzzle flash from the 7 east side of East Parkway Drive." 8 Now, sir does that not refresh your memory 9 as to evidence that was wanted in the Deane manner with 10 respect to him seeing a muzzle flash? 11 A: No, I made no -- no. 12 Q: No. Now, you agree that your 13 description of the muzzle flash in this situation 14 suggests that it might have been from one (1) of the 15 Native people? 16 A: I don't think I -- no. 17 Q: I see. You don't think it suggests 18 that? 19 A: No, I was going by my observations. 20 I didn't say who it was. 21 Q: I see. Well, you told us today that 22 you thought it was probably from an officer firing, 23 right? 24 A: There was a possibility it was, yes. 25 Q: Did you not say it was probably from
2071 an officer or words to that effect, sir? 2 A: Probability? That could be fair, 3 yes. 4 Q: Yes. We can -- we'll look at the 5 transcript after the day's over, sir. I don't recall 6 exactly what word you used but you told us you assumed it 7 was from a police officer, right? 8 A: I believe so. 9 Q: Yes. Well, that is what you assumed 10 isn't it; that it was from a police officer, was it not? 11 A: That was my -- my assumption was it 12 was from a police officer, yes. 13 Q: Right. Well, why didn't you say that 14 in -- in this affidavit then, sir, so that people don't 15 get the impression it might have been from a Native 16 person? 17 A: That wasn't the intention of that 18 statement. 19 Q: Well, you agree it's at least leaves 20 -- it at least leaves open the possibility that it was 21 from a Native person? 22 A: I was responding to a question and 23 that's how I answered it. 24 Q: You were responding to a question? 25 A: I -- I was --
2081 Q: What question were you responding to? 2 A: I don't know, the question's not 3 there. 4 Q: Who -- who was asking you questions 5 that you responded to, sir? 6 A: The person taking the Affidavit. 7 Q: And who was that? 8 A: I believe it was -- I'm not sure of 9 his first name, I think it's Ron Pier or -- 10 Q: Ron Piers? 11 A: I think so, yes. 12 Q: It was the name I was trying to 13 remember before. You knew Ron Piers? 14 A: No, I did not. 15 Q: You didn't know. You knew he was a 16 former Deputy Commissioner of the OPP? 17 A: I don't believe so. 18 Q: I see. So you met with him to draft 19 this affidavit? 20 A: That's correct. 21 Q: And you say he asked you questions? 22 A: Something would have prompted the 23 answers. 24 Q: Didn't he tell you that it was 25 important to Ken Deane's defence that there be a muzzle
2091 flash that emanated from other than a police officer? 2 A: Absolutely not. 3 Q: You're sure he didn't tell you that? 4 A: Absolutely. 5 Q: Okay. Well, what could he have 6 possibly asked you that led to this paragraph 8, sir? 7 COMMISSIONER SIDNEY LINDEN: I have no 8 idea. He does -- 9 MR. PETER ROSENTHAL: Sorry? 10 MS. KAREN JONES: Well, I believe that 11 the Officer indicated he couldn't remember the questions 12 that likely prompted the answers so how can you pursue 13 what the nature of the questions were? 14 COMMISSIONER SIDNEY LINDEN: I don't want 15 to go too far into -- 16 MR. PETER ROSENTHAL: Mr. Commissioner, I 17 -- I must say that before I participated in this 18 proceeding I never -- 19 COMMISSIONER SIDNEY LINDEN: Yes -- 20 MR. PETER ROSENTHAL: -- heard of a 21 limitation of cross-examination in this way where -- 22 COMMISSIONER SIDNEY LINDEN: Yeah. 23 MR. PETER ROSENTHAL: -- someone says 24 just because he says I don't recall you can't probe it 25 anymore.
2101 COMMISSIONER SIDNEY LINDEN: No -- 2 MR. PETER ROSENTHAL: If a person says, I 3 don't recall and that's the end of the whole discussion. 4 COMMISSIONER SIDNEY LINDEN: No, no, 5 that's not what anybody's saying. 6 MR. PETER ROSENTHAL: You can try to go 7 at it from other directions and that's what I'm trying to 8 do. 9 COMMISSIONER SIDNEY LINDEN: I'm not sure 10 how this is going to be helpful or I'm not sure -- 11 MR. PETER ROSENTHAL: Mr. Commissioner, 12 with great respect may I make submissions? 13 One (1) of the big issues in this case 14 that you're going to have to determine is whether there 15 is any evidence -- 16 COMMISSIONER SIDNEY LINDEN: Yeah. 17 MR. PETER ROSENTHAL: -- of any guns or 18 gunfire from the First Nations people. 19 COMMISSIONER SIDNEY LINDEN: Yes, well -- 20 MR. PETER ROSENTHAL: This man writes an 21 Affidavit -- 22 COMMISSIONER SIDNEY LINDEN: There hasn't 23 been any -- 24 MR. PETER ROSENTHAL: -- the only 25 reasonable interpretation of which is that there were
2111 shots from Native people in my respectful submission. 2 COMMISSIONER SIDNEY LINDEN: I -- you -- 3 MR. PETER ROSENTHAL: That's a matter for 4 submissions. 5 COMMISSIONER SIDNEY LINDEN: So far 6 you're the only one who's made that inference or that 7 interpretation. 8 MR. PETER ROSENTHAL: Well -- 9 COMMISSIONER SIDNEY LINDEN: Well, the 10 Witness certainly hasn't. 11 MR. PETER ROSENTHAL: I don't -- I -- I 12 will do that in submissions I would think but -- 13 COMMISSIONER SIDNEY LINDEN: But the 14 Witness hasn't said that. 15 MR. PETER ROSENTHAL: -- it certainly is 16 a reading of this document that is very plausible that it 17 might have been from a First Nations person although he's 18 told us -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. PETER ROSENTHAL: -- he assumed it 21 was not. And it was a big issue and we'll see more 22 evidence about this, Mr. Commissioner. I don't know if 23 you've had the opportunity -- 24 COMMISSIONER SIDNEY LINDEN: No, I 25 haven't, I'm just hearing what I'm hearing.
2121 MR. PETER ROSENTHAL: No. So we're at 2 the beginning of a long question as to was there any 3 gunfire whatsoever from First Nations people. We know 4 that the police were firing and they killed somebody. 5 And they were -- they've claimed at 6 various times that there were firings from the Native 7 people. 8 COMMISSIONER SIDNEY LINDEN: Right. 9 Okay. 10 MR. PETER ROSENTHAL: And there's no 11 evidence to support that -- 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. PETER ROSENTHAL: -- in my respectful 14 submission. But we'll be probing that throughout. And 15 we have to probe why this man would swear an affidavit 16 that says: 17 "After the bus had passed my position, 18 I remember seeing at least one (1) 19 muzzle flash from the east side of East 20 Parkway Drive." 21 In a way that doesn't certainly clarify 22 that it was probably from a police officer. 23 COMMISSIONER SIDNEY LINDEN: So far it's 24 not inconsistent with what he said here on the stand 25 either.
2131 MR. PETER ROSENTHAL: But with respect -- 2 so I've just indicated, I want to probe that further, 3 sir, for that -- those reasons. And I -- I would 4 respectfully submit that it's an important area to be 5 probed. 6 But I, of course -- now I've made my 7 submission and if you rule I should move on, I'll move 8 on, sir. 9 COMMISSIONER SIDNEY LINDEN: Well how 10 many more questions do you have about this particular 11 matter? I mean, I don't want to prevent you from 12 completing your examination but I -- 13 14 CONTINUED BY MR. PETER ROSENTHAL: 15 Q: Now, you've told us today -- I'll ask 16 a different questions if I may related to this. 17 You told us today that there was one (1) 18 muzzle flash that you saw, right? 19 A: That's correct. 20 Q: Total, one (1), right? 21 A: That's correct. 22 Q: But here you wrote in a sworn 23 document that was presented to the Court of Appeal, at 24 least one (1), right? 25 A: That's right.
2141 Q: And you were aware that Ken Deane was 2 claiming more than one; is that right? 3 A: No. 4 Q: How did Mr. Pier's or whoever first 5 approached you about making this affidavit, approach you? 6 A: I can't recall. 7 Q: When you were making this affidavit, 8 was that in the course of your duties as an officer in 9 the OPP, sir? 10 A: Yes. 11 Q: It was? 12 A: Yes. 13 Q: So your superior officer would have 14 to approve you doing it then, sir? 15 A: They would be aware of it, yes. 16 Q: And who was your superior officer at 17 the time, sir? 18 A: What was the date of this, '98? 19 Q: The date is -- 20 COMMISSIONER SIDNEY LINDEN: '98. 21 22 CONTINUED BY MR. PETER ROSENTHAL: 23 Q: You can see the date at the very end 24 of the Affidavit, sir, because it's sworn on the 4th of 25 August 1998. That wouldn't -- I should caution that that
2151 wouldn't necessarily mean that would be the date when you 2 first spoke about this. You might have -- normally an 3 affidavit might go through a couple of revisions, so -- 4 A: In 1996 I became a dog handler, so at 5 that time my immediate supervisor would have been 6 Sergeant Kieran O'Halloran. 7 Q: And that would have been, say from 8 August 1st -- for all of August 1998, you say -- 9 A: After -- yeah, after the end of 10 December '96 that was my supervisor -- immediate 11 supervisor. 12 Q: From December '96 up until shortly 13 after the 4th of August 1998? 14 A: Yes. 15 Q: Okay. So -- 16 A: Sorry. I changed bosses there a 17 couple of times or supervisors, so I'm -- so I'm not sure 18 if he was my supervisor. It depends what the date is 19 because I'm not sure when -- 20 Q: The date -- the date is the 4th of 21 August -- 4th of August. 22 A: I had three (3) different supervisors 23 in that period. 24 Q: I see. Okay. Now, so this was part 25 of your official duties though, to make -- doing this
2161 affidavit? 2 A: I was a sworn police officer at the 3 time, yes. 4 Q: Yeah. And so you would have recorded 5 something about this in your notes, right? 6 A: Possible, yes. 7 Q: And I -- I gather you have not had an 8 opportunity to check your notes for this time period? 9 A: That's correct. 10 Q: But I gather that you will be doing 11 so. 12 A: I believe so. 13 14 (BRIEF PAUSE) 15 16 Q: Now, you continue further on in Tab 17 31. Excuse me, Mr. Commissioner. 18 There are a couple of exhibits attached to 19 your affidavit. I presume the exhibit copy in this 20 proceeding includes the exhibits to the affidavit as 21 well. 22 And the Exhibit 'C' is a handwritten 23 document, it's the last document in there save the back 24 page. And this is a statement that you made as well; is 25 that correct, sir?
2171 Exhibit 'C', it's a handwritten document. 2 3 (BRIEF PAUSE) 4 5 A: This is a statement I, by the looks 6 of it, that I gave. 7 Q: Yes, well, we can probably determine 8 that from the -- according to paragraph 10 of the printed 9 Affidavit, you write: 10 "I was interviewed by Ron Piers on July 11 9th, 1997. Shown to me now and 12 attached to this Affidavit is Exhibit 13 C, is a true copy of my statement to 14 him." 15 So you swore in August of 1998 that you 16 created Exhibit C when you were interviewed by Ron Piers 17 on July 9th, 1997, right? 18 A: Yes, I do see his signature on here 19 now. 20 Q: So may I first suggest that the 21 request for you to provide notes would include, then, 22 your notes relating to your being interviewed by Ron 23 Piers on July 9th, 1997 in addition to your preparation 24 for the Affidavit in August of 1998? 25 A: Correct.
2181 Q: Now, again, you participating in that 2 interview by Ron Piers was part of your official duties 3 as an OPP officer; is that correct? 4 A: Yes. 5 6 (BRIEF PAUSE) 7 8 Q: Now, then turning to Exhibit C. I'm 9 interested in the last paragraph on the second page of 10 that handwritten exhibit. 11 Now, I should first read that and ask if 12 I'm reading it correctly or -- or -- if you like, sir, 13 you read it if you prefer. Who do you want to read it, 14 you or me? 15 A: Go ahead and read it if you wish. 16 Q: "After the occurrence, we were 17 walking back to the TOC area. I was 18 with Wade Lacroix, George Hebblethwaite 19 and possibly Rob Huntley. They were 20 talking about a hand coming out of the 21 car with a gun and that was followed by 22 a flash. There was a great deal of 23 discussion and I drew the conclusion 24 that they may have discharged their 25 firearms, that being Lacroix and
2191 Hebblethwaite." 2 Did I read it correctly? 3 A: That's correct. 4 Q: And that was a true statement that 5 you made? 6 A: Yes, it was. 7 Q: So right after the -- and the 8 occurrence, of course, was the killing of Dudley George 9 and the surrounding events, right? 10 When you say "after the occurrence", do 11 you mean -- 12 A: Just -- 13 Q: -- that's in the evening of September 14 6th, 1995 -- 15 A: That's correct. 16 Q: -- after -- after the events that 17 you've testified about, right? 18 A: That's correct. 19 Q: So you walked back to the TOC area 20 with Lacroix, Hebblethwaite and possibly Huntley? You're 21 not sure if Huntley was in the group? 22 A: That's correct. 23 Q: And you had considerable discussion 24 as to what had happened, right? 25 A: I did not. There was a lot of -- the
2201 whole CMU was moving to the rear at that time. 2 Q: Well, you wrote: 3 "There was a great deal of discussion." 4 A: That's right. 5 Q: You -- but so, when you say I did 6 not, you mean you didn't say anything? 7 A: I didn't say a whole lot, no. 8 Q: Or didn't say much. 9 A: That's correct. 10 Q: But Lacroix and Hebblethwaite were 11 very excitedly talking about it; isn't that fair? 12 A: There -- yes, there was -- there was 13 discussion -- 14 Q: It was animated discussion. They 15 were just involved in this rather momentous event and 16 they were telling -- saying what happened in great 17 detail, right? 18 A: Well, I think everybody just went 19 through a very traumatic event, yes. 20 Q: Yes. And they were talking about it 21 a great deal? 22 A: Yes. There was some conversation, 23 yes. 24 Q: And in particular, one of the 25 inferences you drew from what they were saying is that
2211 they, meaning Lacroix and Hebblethwaite, might have 2 discharged their firearms in the course of this, right? 3 A: That was possible from what I was -- 4 Q: That's what you inferred from what 5 they were saying, right? 6 A: That -- it was a possibility, yes. 7 Q: Well, you said you drew that 8 conclusion, right? That's what you wrote? 9 10 (BRIEF PAUSE) 11 12 A: Yes, I drew a conclusion, yes. 13 COMMISSIONER SIDNEY LINDEN: That they 14 may have, just to read it accurately. 15 MR. PETER ROSENTHAL: Yes. 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: You drew the conclusion that they may 19 have discharged their firearms, right? 20 A: Yes. 21 Q: Now, so you had this discussion with 22 those two (2) officers, possibly a third officer going 23 back to the TOC, and then you arrived at TOC, right? 24 A: That's correct. 25 Q: And now did you have a debriefing of
2221 your arrest team at that point, sir? 2 A: Very brief. 3 Q: Very brief debriefing? 4 A: Very brief debriefing, yes. 5 Q: Okay. And the debriefing must have 6 talked about the one (1) arrest that you did that night, 7 presumably Cecil Bernard George? 8 A: There was -- no. There wasn't a lot 9 of discussion. 10 Q: There wasn't a lot of discussion but 11 was there some -- there must have been some discussion of 12 the one (1) arrest that the arrest team made, no? 13 A: I don't recall any recollection of 14 that, no. 15 Q: Well, the purpose of a debriefing is 16 what in your view? 17 A: This was not a -- a true debriefing. 18 Q: I see. Okay, well, did you -- did 19 you have a true debriefing at some point? 20 A: I don't believe we have ever had a 21 complete debriefing, no. 22 Q: You've never had a complete one? 23 A: That's correct. 24 Q: You had several mini debriefings 25 might we say or what -- how would you characterise?
2231 A: No, I believe I told you after I 2 checked on the well being of our members in the group I 3 was, in on the 8th of September there was a -- more of a 4 healing circle briefing which didn't discuss the events. 5 Q: Okay. There -- you told -- you said 6 something to the effect of that after you got back to the 7 TOC Inspector Carson spoke to you; is that right? 8 A: Again it was -- from my recollection 9 it was pretty brief. 10 Q: And that was not just to you 11 personally that was to a large group of officers, right? 12 A: There was other officers there, yes. 13 Q: And you don't recall what he said at 14 that time? 15 A: No, I do not. 16 Q: Now, did you meet with Mr. Peel 17 sometime around September 6, 7, 8, 1995? 18 A: I did meet with him but I -- but I 19 don't recall the date. 20 Q: I'm sorry? 21 A: I do not recall the date. 22 Q: But sometime within several days of 23 the shooting? 24 A: My recollection I -- I -- 25 Q: Okay. Or --
2241 A: -- like, I'm not sure. 2 Q: Can you say sometime in September of 3 1995? I -- 4 A: I don't even know if it was in 5 September. Q: Can we say sometime in 1995? 6 A: I won't even speculate. 7 Q: No, it's not a question of 8 speculating, sir, it's a question of getting a sure date 9 that you know it was before then. You know it wasn't 10 yesterday, right? 11 A: I'm sure of that, yes. 12 Q: Okay. You're not sure if it was 13 before the end of 1995, December 31st? 14 A: No, I'm not sure. 15 Q: Okay. But you're sure it's before 16 the end of 1996 are you, sir? 17 A: No, I'm not sure. 18 Q: You're not sure, okay. In 1997? 19 A: I tell you I'm sure it's not -- no, I 20 -- I have no -- 21 Q: In 2000? 22 A: -- independent recollection. 23 Q: Did you speak to him before the year 24 2000? 25 A: Before 2000?
2251 Q: Yes. 2 A: Yes. 3 Q: Okay. Sometime between September 6 4 of 1995 and January 1st, 2000, you spoke to Mr. Peel 5 right? 6 A: Yes. 7 Q: And where did you speak to him? 8 A: At his residence. 9 Q: At his residence? 10 A: That's correct. 11 Q: I see. And were other officers there 12 as well? 13 14 (BRIEF PAUSE) 15 16 A: I don't recall. 17 Q: You don't recall if any other 18 officers were there, sir? 19 A: No, I don't recall. 20 Q: I see. So you might have had a 21 private meeting with Mr. Peel? 22 A: Yeah, I did have a private meeting 23 with Mr. Peel. 24 Q: You did have a private meeting with 25 Mr. Peel. I see. And was that because you were seeking
2261 legal advice from Mr. Peel? 2 A: No. 3 Q: No. I see. So what was the reason 4 for that meeting? 5 A: He was -- he'd been a -- was Ken 6 Deane he -- retained him as his lawyer so he wanted to 7 speak because I was a witness. 8 Q: I see. Do you recall if that was 9 before or after the Deane trial? 10 11 (BRIEF PAUSE) 12 13 A: I don't recall. 14 Q: Okay. And so he said he wanted to 15 speak to you as a potential witness -- 16 A: That's correct. 17 Q: -- in -- in defence of Ken Deane? 18 A: I don't know if he specifically said 19 that but... 20 Q: And so he interviewed you about what 21 you saw? 22 A: That's correct. 23 Q: And you don't recall if that was 24 before or after the trial of Ken Deane, but if you would 25 take your mind back to it and perhaps think was there any
2271 question about you possibly being a witness at the Ken 2 Deane trial, was that one (1) of the reasons he was 3 interviewing you as a potential witness at the trial? 4 A: It's quite possible, yes. 5 Q: And if that -- if that jars your 6 memory then that would suggest it was before the Deane 7 trial in any event, right? 8 A: Or -- 9 Q: Before or during the Deane trial? 10 A: There's a good chance it was before, 11 yes. 12 Q: Yes. It could -- sometimes one 13 realizes in the course of a trial one wants another 14 witness so it could have been during the trial as well 15 that you would be a potential witness, right? 16 A: I don't believe it was then, no. 17 Q: You think it was before the trial? 18 A: I don't want to guess. 19 Q: Okay. But -- but you do recall the 20 notion of you being a potential witness at Ken Deane's 21 trial? 22 A: I do know he interviewed me. 23 Q: And for that purpose, was your 24 understanding? 25 A: In all likelihood.
2281 Q: Yes. So we could take it from that 2 that it was before the end of the Deane trial, right? Is 3 that fair? 4 A: I don't want to guess. 5 COMMISSIONER SIDNEY LINDEN: Mr. 6 Rosenthal -- 7 MR. PETER ROSENTHAL: But, then when 8 you -- 9 COMMISSIONER SIDNEY LINDEN: Mr. 10 Rosenthal, we're just going around in circles. 11 MR. PETER ROSENTHAL: Yes. I agree. But 12 that's not -- that's not a guess, Mr. Commissioner, 13 that's a very powerful inference and it's interesting 14 that the Witness refuses to draw it, but in any event. 15 16 CONTINUED BY MR. PETER ROSENTHAL: 17 Q: Just a couple of other matters 18 quickly. You bought a t-shirt that was made as a 19 consequence of this event, you told us, right? 20 A: I did buy a T-shirt, yes. 21 Q: And who did you buy it from? 22 A: I don't know. 23 Q: You don't know. 24 A: No. 25 Q: Was it a police officer?
2291 A: I believe so. 2 Q: And where did you buy it? Was it 3 delivered to you in your home, or did you buy it in the 4 Forest Detachment, or where did you buy it? 5 A: I don't recall where I bought it. 6 Q: You can't recall anything about the 7 purchase now, sir? Who you bought it from or where it 8 was? 9 A: I don't recall who I bought it from. 10 I -- I don't recall where I was when I bought it, no. 11 Q: Well, did you see these T-shirts on 12 sale in the Forest Detachment, at some point? 13 A: I don't believe so. 14 Q: Did you see them on sale somewhere in 15 some -- someplace other than your own home? 16 A: Yes. 17 Q: You saw them on sale somewhere? In 18 some police -- on some police premises then, it would 19 have been? 20 A: I -- I'm not sure where I bought it 21 or when I -- on what day I bought it. 22 Q: But -- but your recollection is you 23 bought it somewhere where there were some on display. It 24 wasn't an individual officer saying, do you want to buy a 25 T-shirt?
2301 A: I don't recall any -- any shirts 2 being on display, no. 3 Q: Did I misunderstand you a few minutes 4 ago? You indicated that there was some place where they 5 were being sold, correct? 6 A: I bought a T-shirt. I -- somebody -- 7 I gave somebody some money and they gave me a t-shirt. I 8 don't know who it was. 9 Q: How much money did you give? 10 A: I have no idea. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 He doesn't recall. 13 MR. PETER ROSENTHAL: Well, maybe I have 14 to go a little further so you can draw inferences about 15 credibility, Mr. Commissioner. 16 COMMISSIONER SIDNEY LINDEN: Well, you 17 can draw inferences about, but it is ten (10) or eleven 18 (11) years ago, so when witnesses say they don't recall 19 an event that's ten (10) or eleven (11) years ago, it's 20 different than a witness who doesn't recall an event 21 that's six (6) months ago. 22 But in any event that is his answer. 23 MR. PETER ROSENTHAL: Yeah. I don't have 24 to make my submissions now. 25
2311 CONTINUED BY MR. PETER ROSENTHAL: 2 Q: What about -- did you buy a mug? 3 A: No. 4 Q: You heard that there were mugs for 5 sale? 6 A: No. I -- I don't recall mugs being 7 for sale. 8 Q: Did you see a mug at any point? 9 A: I -- I've never seen the mug, no. 10 Q: You didn't hear about mugs existing? 11 A: I -- I heard of mugs existing, yes. 12 Q: You heard -- you heard they existed? 13 A: I read newspapers, yes, I've heard of 14 mugs existing. 15 Q: Sorry? 16 A: I -- I've heard of mugs existing, 17 yes. 18 Q: Yeah. And you heard about it before 19 it hit the press, right? 20 A: Not that I recall. 21 COMMISSIONER SIDNEY LINDEN: He said he 22 heard about it in the newspaper. I think that's what he 23 said. 24 MR. PETER ROSENTHAL: Yeah. No, I didn't 25 quite hear that.
2321 COMMISSIONER SIDNEY LINDEN: No, that's 2 fine. That's fine. 3 4 CONTINUED BY MR. PETER ROSENTHAL: 5 Q: The t-shirt, you don't recall who 6 sold it or where you bought it, but it would have been 7 some time within weeks following the incident, or within 8 a month or two, or what? 9 A: I believe not long after. 10 Q: So say within a month or two, 11 certainly? 12 A: That would be fair. 13 Q: And you told us that nobody from the 14 OPP interviewed you about your purchase of a t-shirt; is 15 that right? 16 A: That's correct. 17 Q: You knew that some people were being 18 interviewed about that? 19 A: About the t-shirts? 20 Q: Yeah. 21 A: I believe so. 22 Q: You were aware of that? Some fellow 23 officers informed of that, did they? 24 A: No. 25 Q: No. I see. Okay. You sometimes saw
2331 officers off duty wearing those t-shirts, right? 2 A: No. 3 Q: Never. 4 A: That's correct. 5 Q: I see. You wore yours sometime? 6 A: Never wore it. 7 Q: Never wore it. Did you frame it? 8 A: I think I told you yesterday what I 9 did with it. 10 Q: I know. But before you discarded it, 11 did you frame it? 12 A: Absolutely not. 13 Q: I see. So when did you discard it? 14 A: When I -- when the attachment was put 15 on the t-shirt that had some sort of evil to it, which I 16 didn't put on the shirt before that, I destroyed it. 17 Q: And when was that? 18 A: When was that? 19 Q: What year, approximately? 20 A: It would have been long after. I -- 21 I -- I'm not sure when it was. 22 Q: Well, again, I'd like to get some 23 period that we can be sure about. Was it before the year 24 2000? 25 A: It was before the year 2000, yes.
2341 Q: You destroyed it before the year 2 2000? 3 A: Yes. 4 Q: And what gave you the indication that 5 there was something improper about it when you originally 6 thought it was proper? 7 A: Again, I -- there was -- there was 8 some negative press surrounding it. 9 Q: Yes. 10 A: That would have been my first time 11 that I realized that it offended some people. 12 Q: I see. Now, one (1) question going 13 back to the early morning of September 7, 1995. You told 14 us that at about four o'clock that morning, I believe, 15 you went down East Parkway Drive, evacuating some of the 16 cottagers; is that correct? 17 A: That's correct. 18 Q: And you were ordered to do that by 19 Inspector Carson? 20 A: I don't -- I don't recall who ordered 21 me to do it. I don't think it was -- no, I don't think 22 it was Inspector Carson. 23 Q: And did you do that in company with 24 some other officers? 25 A: Yes.
2351 Q: What other officers? 2 A: Dave Myer. 3 Q: Dave Myer. Okay. And did the 4 question arise, in any discussions that you were aware 5 of, as to why there hadn't been an evacuation earlier in 6 the evening of those cottages? 7 A: Am I aware of a conversation? 8 Q: Are you aware of any discussion of 9 that possibility? 10 A: I don't believe so. 11 Q: Were you given any explanation as to 12 why there should be an evacuation then? 13 A: I believe so, yes. 14 Q: What was the explanation? 15 A: There was an increased public safety 16 threat in the area. 17 Q: I see. And it was your understanding 18 that was similar to the explanation for the CMU going 19 down the road in the first place, right? 20 A: That there was public safety issues? 21 Q: Yes. 22 A: That would form part of it, yes. 23 Q: Did anybody indicate why the CMU had 24 to go down the road earlier, but didn't have to be down 25 the road at 4:00 in the morning?
2361 A: No. 2 Q: Now you attended a debriefing by a 3 psychologist, you told us, about seven o'clock in the 4 morning of Friday September 8th; is that correct? 5 A: I don't believe the debrief was at 6 7:00. That's when I came on duty. It was in the 7 morning, though. 8 Q: Okay. Excuse me a second. 9 10 (BRIEF PAUSE) 11 12 Q: Well, your evidence yesterday at page 13 319, I believe it was referring to your notebook, but you 14 were asked -- well beginning at the bottom of page 318: 15 "Did you receive any debriefing in the 16 form of psychological counselling 17 relative to Ipperwash on the 7th of 18 September? 19 A: It was on the 8th, but maybe. 20 Q: On the 8th?" 21 And then it says: 22 Q: Yes. 23 And then: 24 A: Yes, on Friday the 8th of 25 September.
2371 Q: All right. Yes, at your seven 2 o'clock notation or...?? 3 A: Yes." 4 So -- 5 A: That's correct. 6 Q: -- wasn't it seven o'clock in the 7 morning, or no? 8 A: No, that's a notation of 07, that I 9 came in, but I -- the -- the meeting was in the morning. 10 Q: I see, okay. 11 A: Whether it started at 7:00; I don't 12 believe it started at 7:00. 13 Q: So sometime after 7:00 in the 14 morning? 15 A: That's correct. 16 Q: But maybe not the first thing, when 17 you reported at 7:00? 18 A: It was early in the morning, but I 19 don't believe it was right at 7:00. 20 Q: Okay. And other members of your team 21 were present as part of that psychological debriefing? 22 A: Yes. 23 Q: And when you say, Your team, do you 24 mean the eight (8) arrest team members? 25 A: No.
2381 Q: I see. Who do you -- who do you mean 2 when you say your team, in that context? 3 A: The actual ERT team. 4 Q: The actual ERT team. 5 A: That's correct. 6 Q: Consisted of how many members? 7 A: I don't know if they were all there. 8 Q: Yes. 9 A: The team at that time -- generally 10 it's sixteen (16). I don't know if we were at sixteen 11 (16) at that time. 12 Q: And was Officer Hebblethwaite part of 13 your team? 14 A: The 1 District, no. 15 Q: No. And Officer Lacroix? 16 A: He was -- no, he's not a -- actually 17 part of our 1 District ERT team. 18 Q: Okay. So you know that most, is it 19 fair to say, but not necessarily all, of members of 1 20 District ERT team were at this psychological debriefing 21 with you? 22 A: That's correct. 23 Q: And there were other officers there 24 in addition; is that fair? 25 A: I believe so.
2391 Q: And can you assist us as to 2 approximately how many? 3 A: I believe there was -- I believe 4 there was some 2 District ERT members there as well. 5 Q: Yes? 6 A: But I don't specific -- I don't know 7 who was present? 8 Q: Yes? 9 A: As far as the number of officers 10 present? 11 Q: Maybe twenty (20) to thirty (30)? 12 Would that be a fair estimate? 13 A: That would be fair, yes. 14 Q: And people talking about their 15 feelings about what happened, right? 16 A: That's correct. 17 Q: In the course of talking about their 18 feelings about happened, they would say some of the 19 events, like, I saw a gun come out, or something like 20 that, right? 21 A: No. 22 Q: Not at all? 23 A: I don't recall that at all, no. 24 Q: You're certain that nobody would say 25 anything about what happened that evening?
2401 A: My recollection is that the person 2 facilitating the meeting -- 3 Q: Yes? 4 A: -- we weren't -- we were not to 5 discuss the actual events. 6 Q: Well, but if people are to talk 7 about their feelings about an event -- 8 COMMISSIONER SIDNEY LINDEN: Yes, Mr. -- 9 MR. PETER ROSENTHAL: -- don't they 10 automatically, in that kind of a situation -- 11 COMMISSIONER SIDNEY LINDEN: Mr. 12 Rosenthal, you're not going to probe the psychological 13 counselling anymore than that. He said that they were 14 told not to discuss the events. 15 MR. PETER ROSENTHAL: Sir, that's what he 16 said. 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. PETER ROSENTHAL: But I do want to 19 probe it more, sir, with great respect, because -- 20 COMMISSIONER SIDNEY LINDEN: Well, you've 21 used up your time and I'm not sure how helpful this is 22 going to be at this stage. 23 MR. PETER ROSENTHAL: I'm not sure -- 24 sure either, Mr. Commissioner, at this point. 25 COMMISSIONER SIDNEY LINDEN: Yes.
2411 MR. PETER ROSENTHAL: We can't be sure 2 how helpful any particular piece of evidence will be. 3 COMMISSIONER SIDNEY LINDEN: Well, I -- 4 MR. PETER ROSENTHAL: We'll see that at 5 the end of the day. 6 COMMISSIONER SIDNEY LINDEN: This isn't 7 an opportunity just to explore everything. I mean we're 8 trying our best to keep focussed, Mr. Rosenthal -- 9 MR. PETER ROSENTHAL: Yes. Mr. 10 Commissioner -- 11 COMMISSIONER SIDNEY LINDEN: -- so you've 12 said you would take an hour, you've taken an hour. Do 13 you have any other areas that you wish to cover? 14 MR. PETER ROSENTHAL: This is my last 15 area, Mr. Commissioner. 16 COMMISSIONER SIDNEY LINDEN: All right. 17 Then just finish it. 18 MR. PETER ROSENTHAL: And with great 19 respect, may I speak to the relevance of it? 20 COMMISSIONER SIDNEY LINDEN: You don't 21 have to. You're asking the question, ask it. He's -- 22 MR. PETER ROSENTHAL: Thank you. 23 COMMISSIONER SIDNEY LINDEN: -- already 24 given an answer but -- 25 MR. PETER ROSENTHAL: And I'm going to --
2421 COMMISSIONER SIDNEY LINDEN: -- you want 2 to probe it a bit. 3 MR. PETER ROSENTHAL: -- probe it a 4 little further and then I will sit down. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: Now, sir, I would put it to you that 8 at a meeting of that type or any similar meeting, if 9 people are explaining their feelings about an event, they 10 can't do it without linking it to some of the facts of 11 the event. You don't just say I feel bad and then 12 somebody else says, Oh, yeah, me too. 13 You say, I feel bad because Dudley George 14 is dead, for example, or something, right? You have to 15 link it to some facts if you're having a discussion. 16 Doesn't that jar your memory, sir? 17 A: The facts of the -- what took place, 18 they were not discussed. 19 Q: So people just spoke about their 20 feelings without linking it to any facts at all; is that 21 your evidence, sir? 22 COMMISSIONER SIDNEY LINDEN: That's -- 23 THE WITNESS: Some -- we -- there was no 24 requirement for anybody to say anything. 25
2431 CONTINUED BY MR. PETER ROSENTHAL: 2 Q: But people did speak, right? 3 A: Most of the talking was coming from - 4 - my recollection was coming from Dr. Hoath. 5 Q: But individual members did speak up, 6 did they not? 7 A: People were given the opportunity to 8 -- to talk, but it wasn't about the events. 9 Q: Did you not indicate that people did 10 express their feelings? We'll look at the transcript 11 again, sir, but did I mishear you with that? 12 COMMISSIONER SIDNEY LINDEN: Ms. 13 Vella...? 14 MS. SUSAN VELLA: I'm sorry. 15 COMMISSIONER SIDNEY LINDEN: Enough, Mr. 16 Rosenthal, it's psychological counselling. 17 MS. SUSAN VELLA: He -- he's not resiling 18 from what he said. 19 COMMISSIONER SIDNEY LINDEN: No, he 20 hasn't. 21 MS. SUSAN VELLA: The Witness did not 22 resile. He didn't say there was no speaking. 23 MR. PETER ROSENTHAL: Right. 24 MS. SUSAN VELLA: He said there was no 25 speaking about the incident --
2441 COMMISSIONER SIDNEY LINDEN: Well -- 2 MS. SUSAN VELLA: -- about the facts and 3 that they were directed not to. 4 COMMISSIONER SIDNEY LINDEN: We've heard 5 enough. 6 MS. SUSAN VELLA: And unless there's a 7 basis upon which to -- 8 COMMISSIONER SIDNEY LINDEN: It's 9 psychological counselling. 10 MS. SUSAN VELLA: Exactly. 11 MR. PETER ROSENTHAL: I -- I -- 12 appreciate that that's what he said, but I'm trying to 13 get -- but then I'm just trying to reaffirm that. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: You said that people spoke about 17 their feelings, right? And I'm putting it to you, you 18 can't speak about your feelings -- 19 COMMISSIONER SIDNEY LINDEN: You've 20 already put that to him. 21 MR. PETER ROSENTHAL: Yes. 22 COMMISSIONER SIDNEY LINDEN: You've 23 already put that to him. You don't have to put it to him 24 again. You've already put that to him. 25 MR. PETER ROSENTHAL: Okay. Mr.
2451 Commissioner, I really -- 2 COMMISSIONER SIDNEY LINDEN: You've 3 already put that to him. 4 MR. PETER ROSENTHAL: That is an 5 obviously unresponsive answer. One must be able to probe 6 and in my submission -- 7 COMMISSIONER SIDNEY LINDEN: I didn't 8 think it was unresponsive. 9 MR. PETER ROSENTHAL: Well -- 10 COMMISSIONER SIDNEY LINDEN: I thought 11 that he responded and I -- 12 MR. PETER ROSENTHAL: Okay. Thank you. 13 Thank you. 14 COMMISSIONER SIDNEY LINDEN: Thank you 15 very much, Mr. Rosenthal. 16 Yes, Mr. Scullion...? 17 18 (BRIEF PAUSE) 19 20 MR. KEVIN SCULLION: Thank you, Mr. 21 Commissioner. 22 23 CROSS-EXAMINATION BY MR. KEVIN SCULLION: 24 Q: Good afternoon, Staff Sergeant 25 Jacklin.
2461 A: Afternoon, sir. 2 Q: My name is Kevin Scullion and I'm one 3 (1) of counsel for the Residents of Aazhoodena. You may 4 know -- also know as the Stoney Pointers. 5 One (1) of your answers yesterday to Ms. 6 Vella I found very interesting, when you were dealing 7 with the incident with Stewart George. Do you recall 8 testifying about that incident, generally? 9 A: I do. 10 Q: Okay. And that's with two (2) parts: 11 One (1) is the opening of the door into the side of the 12 cruiser or the bumper of the cruiser. And the second is 13 a statement that you attribute to Mr. George about gun 14 sights or guns aimed at you. 15 A: That's correct. 16 Q: Do you remember that? 17 A: Yes. 18 Q: And she asked you about the latter. 19 She said, What was the level of seriousness with which 20 you took the comments with respect to the indication at 21 the time made by Mr. George? 22 Your answer to her was: 23 "Anytime when you're threatened that 24 you may be shot, I take that very 25 serious."
2471 Do you remember giving that answer? 2 A: I do. 3 Q: Now, I appreciate that it's ten (10) 4 years ago, but is your evidence today, that when that 5 statement you attribute to Mr. George, and we won't argue 6 about whether or not it was made, simply that statement 7 that you referred to, you took it seriously at that 8 moment in time on September the 4th, 1995? 9 A: Yes. I -- I said I took it seriously 10 and I -- and I did. You can't disregard the statements. 11 But I tried to make light of it at the time. 12 Q: I understand that. I'm going to 13 suggest to you that at that point in time, you took it in 14 the light that he was venting or he was expressing 15 frustrations similar to the way you took Staff Sergeant 16 Skinner's comments to you over the phone. 17 Do you disagree with that? 18 A: Yes. 19 Q: All right. You'd agree with me that 20 if you had taken them seriously, that type of comment 21 would have appeared in your notes of the incident, 22 correct? 23 A: It was an oversight, yes. 24 Q: Well I appreciate that you testified 25 that way, but it would have appeared in your notes, but
2481 for what you referred to as an oversight, correct? 2 A: That's correct. 3 Q: Right. And if you'd taken it 4 seriously at the time, it would have appeared in an 5 incident report, correct? 6 A: I believe it did appear in the -- the 7 occurrence report. 8 Q: The statement that you attribute to 9 Mr. George. 10 A: I'd have to look at my notes. 11 Q: Well, it's not in your notes. 12 A: Of -- at the trial, possibly. 13 Q: Let's leave the trial out for a 14 second. 15 A: I told you it wasn't in my notes. 16 Q: It was not in your notes -- 17 A: That's correct. 18 Q: -- you've been referred to an 19 incident report that's in your book of documents there, 20 Tab 12. Do you have that before you? 21 A: I do. 22 Q: You'd agree with me that that 23 statement that you attribute to Mr. George is not in that 24 incident report? 25 A: That's correct.
2491 Q: Right. And that's the incident 2 report that you filed, as complainant, in order to have a 3 warrant issued for Mr. George's arrest. 4 A: I did not complete that incident 5 report, that I recall. 6 Q: Whether or not you completed it, it 7 was completed on the basis of information you provided 8 about this particular incident, correct? 9 A: The incident report is created to 10 substantiate the charge, which was mischief. 11 Q: There's a separate charge for 12 uttering death threats, correct? 13 A: There is. 14 Q: It's a more serious charge than 15 mischief to the bumper of your police vehicle. You'd 16 agree with that? 17 A: I agree. 18 Q: Right. There's no warrant for Mr. 19 George's arrest for a death threat, correct? 20 A: You asked me if I took the threats 21 serious, or as a police officer do you take that as being 22 serious, and I do. 23 The question was then, I believe, did I 24 believe that he was being sincere or it was -- there was 25 meaning to his threat. I stand by my answer that I took
2501 it serious, that threat. 2 Did I put a great deal of weight on it, 3 based on the circumstances at the time, in his condition? 4 It was probably minimized somewhat, yes. 5 6 (BRIEF PAUSE) 7 8 Q: Do you give me credit for catching 9 the microphone? 10 A: You did a good job, that's good. 11 Q: The point is there was no arrest 12 warrant issued for that statement you attribute to Mr. 13 George, correct? 14 A: That is correct. 15 Q: And as for the reasons you just 16 pointed out, that although the comment may cause concern, 17 you didn't take it seriously enough to look to a warrant 18 for his arrest, correct? 19 A: That would be fair. 20 Q: All right. Now, I'm going to suggest 21 to you that the first time we see reference to that is in 22 the statement that Ms. Vella took you, which is also in 23 your tab. It's always fun finding documents. My 24 Friend's helped me out. Tab 13. 25 Do you see that document?
2511 A: That's correct. 2 Q: And it's -- it was referred to, Mr. 3 Commissioner, as P-1393. 4 And that has reference in it to the 5 statement that you're now talking about from Mr. George, 6 correct? 7 A: That's correct. 8 Q: All right. Mr. Rosenthal took you to 9 your Affidavit, which is at Tab 31, in regards to various 10 attachments. And I'm trying to determine what date that 11 you attribute to this statement at Tab 13, and I need you 12 to work with me here. 13 Do you have Tab 31 in front of you? 14 A: I do. 15 Q: All right. This statement is 16 attached as Tab A to your Affidavit, correct? 17 18 (BRIEF PAUSE) 19 20 A: At the bottom of page 1? 21 Q: Tab A. 22 A: Of the -- 23 Q: Exhibit A, sorry, four (4) pages in. 24 25 (BRIEF PAUSE)
2521 A: Where it was sworn? Is that where 2 I've got -- 3 Q: The next page. 4 5 (BRIEF PAUSE) 6 7 A: Yes. 8 Q: That's referenced in your Affidavit 9 on page 3, paragraph 10. 10 Do you see that reference, A and B? 11 12 (BRIEF PAUSE) 13 14 A: At Tab 10, yes. The number 10, yes. 15 Q: Paragraph 10. You've sworn in this 16 Affidavit that you prepared this written statement in 17 September 1995, and you were subsequently interviewed by 18 Constable Donaldson on September 7th, 1995, the day after 19 Dudley was shot. 20 A: That's correct. 21 Q: You see that in your Affidavit? 22 A: Yes. 23 Q: And you swore to that, at the time, 24 that it was true. 25 A: That's correct.
2531 Q: Right. So if that is true, this 2 statement that we have at Tab 13, you've testified was 3 prepared before you met with Constable Donaldson at 11:00 4 a.m. on September 7th. 5 6 (BRIEF PAUSE) 7 8 Q: Does that make sense to you? 9 A: You've lost me, I think. I gave this 10 statement to Officer Donaldson, yes, on the 7th of 11 September -- 12 Q: The 7th of September at 11:00 a.m. 13 A: That is correct. 14 Q: All right. Your paragraph 10 seems 15 to indicate that this statement was prepared before you 16 met with Sergeant Donaldson -- or Constable Donaldson. 17 A: Okay. 18 Q: And I'm trying to determine when this 19 statement was prepared. 20 A: I don't recall when it was prepared. 21 Q: I suggest to you that paragraph 10 is 22 incorrect, because if we go in -- three (3) pages into 23 Tab 13 -- do you have that before you? 24 25 (BRIEF PAUSE)
2541 A: Where are we now, page 13? 2 Q: Tab 13. 3 4 (BRIEF PAUSE) 5 6 Q: I'm at three (3) pages in. 7 8 (BRIEF PAUSE) 9 10 A: Yes. 11 Q: There's a -- sorry, four (4) pages 12 in. There's a handwritten statement, again, undated. 13 Do you have that? 14 A: I do. 15 Q: Is that your handwriting? 16 A: It is. 17 Q: So this, I presume, was prepared by 18 you at some point; is that correct? 19 A: That is correct. 20 Q: At the top it says: 21 "Will Say statement." 22 Do you see that? 23 A: I do. 24 Q: What was this prepared for? 25 A: For the mischief charge.
2551 Q: For the mischief charge. 2 A: That's correct. 3 Q: Does that help in terms of when it 4 was prepared? 5 6 (BRIEF PAUSE) 7 8 A: It doesn't. 9 10 (BRIEF PAUSE) 11 12 Q: It's just -- where is it, no further, 13 it's sometime in September of 1995? 14 A: For a three (3) or four (4) day 15 period I was jumping from occurrence to occurrence under 16 -- it was very busy so I -- I don't know when I would 17 have had time to create this statement, so I -- I do not 18 recall when I wrote that statement. 19 Q: All right. I'm going to suggest to 20 you that this statement, that you attribute to Mr. 21 Stewart George, only became concerning, or serious to 22 you, after the shooting of Dudley George, at which time 23 you were preparing your notes of what happened the 24 previous couple of days? 25 A: Absolutely not.
2561 Q: All right. If I might move on. You 2 made a comment along the way with regards to this 3 automatic gunfire that was allegedly heard by Constable 4 Parks. 5 Do you remember testifying about that? 6 A: I do. 7 Q: All right. And one (1) of the things 8 you said was that would be of concern to you because it 9 would mean it was drum fed, or belt fed, or more than one 10 (1) weapon going off at once. 11 Do you remember saying that? 12 A: I do. 13 Q: Did you raise that concern at any 14 point in time on September the 6th, when the CMU was 15 being organized to walk down the road towards the Park? 16 A: That information on the 5th was 17 shared with Inspector Linton. I did not specifically 18 talk about it to anybody on the 6th. 19 Q: Okay. Was it a concern to you, as 20 part of this CMU group walking down East Parkway into 21 unknown situation, that someone had heard, the night 22 before, automatic gunfire? 23 A: Could it be a concern because there 24 was firearms -- 25 Q: Was it a concern for you on September
2571 the 6th? 2 A: On the -- typically because of the 3 firearm the night before? 4 Q: Yes. 5 A: The information I had about firearms, 6 including that, would give me some concern, yes. 7 Q: Right. Did you express that concern 8 to anybody, about walking down East Parkway Drive with 9 the possibility that there is guns? 10 A: I didn't, no. 11 Q: Right. Do I take it that in your 12 meeting, your briefing from Staff Sergeant Lacroix, that 13 possibility either wasn't raised or wasn't taken 14 seriously? 15 A: I can't comment on that. 16 Q: Well, I'm asking you what you recall 17 from the briefing from Staff Sergeant Lacroix, whether or 18 not the issue of meeting up with firearms was either 19 mentioned or taken seriously? 20 A: I -- I believe it was taken 21 seriously. 22 Q: But you were still marching into it? 23 A: It was a concern. 24 Q: Okay. You were manning or you were 25 overseeing Checkpoint 'A' on the Army Camp Road, correct?
2581 A: No. 2 Q: Which checkpoint did you have? 3 A: Which day are you talking? 4 Q: September 6th. 5 A: 'C'. 6 Q: 'C', on Army Camp Road? 7 A: That's correct. 8 Q: All right. 9 A: Checkpoint Charlie, yes. 10 Q: Did you have any instructions to 11 indicate that people going through that checkpoint, 12 towards the Park, that as long as they stayed in the Park 13 that was fine, just don't go outside the limits of the 14 Park? 15 Did you ever have those instructions? 16 A: Our instructions or theirs? 17 Q: Instructions to you to tell people, 18 Stay in the Park, we don't want you going outside of the 19 Park. 20 A: I don't recall that. 21 Q: Now, you responded to a number of 22 questions from Ms. Andrea Tuck-Jackson about expectations 23 of what you were going to do and what you were going to 24 encounter when you marched down East Parkway Drive the 25 night of September the 6th.
2591 Do you remember being asked about those -- 2 A: Yes. 3 Q: -- expectations? And she linked that 4 expectation to what had happened the morning of September 5 the 6th, when officers arrived to remove picnic tables. 6 Do you remember that reference? 7 A: I do. 8 Q: Right. And you indicated that you 9 thought that September the 6th would follow the same kind 10 of approach, that people when they saw the police would 11 go back into the Park? 12 A: Correct. 13 Q: Right. That was your expectation 14 going down the road that evening? 15 A: I -- I thought that was a distinct 16 possibility, yes. 17 Q: Well, was it a possibility or a 18 probability in your mind that the simply presence of the 19 officers on the roadway would have the people go back 20 into the Park? 21 A: It was a possibility. 22 Q: All right. Were you ever given any 23 instructions or directions as to what to do if the people 24 went back into the Park? 25 A: Yes.
2601 Q: And what were those? 2 A: Specific to that we were never -- the 3 instructions were we were not to go into the Park. 4 Q: Right. I appreciate that's the first 5 part. 6 A: So if the people went back into the 7 Park then there's no people, then we leave. 8 Q: Were your instructions to leave if 9 people were out of the Park? 10 A: I don't -- 11 Q: Out of the parking lot, sorry? 12 A: If they were out of the parking lot? 13 Q: Yes. 14 A: I think I testified already it 15 depended on the circumstances, that was my impression, 16 what was going on at the time. 17 Q: So even if they were out of the 18 parking lot your instructions weren't to return to TOC, 19 it depended on what else was going on? 20 A: I don't recall those specific 21 instructions, no. 22 Q: Right. Well, I'm trying to see what 23 the overall instructions to this group was going down the 24 road that if (a) they came upon nobody in the parking lot 25 or the people in the parking lot just went back into the
2611 Park. And it seems to me and you can tell me if this is 2 fair or not, but the general instructions were to turn 3 around and come back; is that fair? 4 A: I believe -- I believe that was 5 actually true and demonstrated. 6 Q: Right. And when people may have come 7 back into the parking lot were the instructions to return 8 to the parking lot to clear them out again? 9 A: That's what occurred. 10 Q: I'm asking you what your instructions 11 or your expectations were going down that parkway? 12 A: I do not recall specific instructions 13 to cover every possibility. 14 Q: Right. You'd agree with me that 15 simply pushing people 30, 50, 70 metres back behind a 16 fence doesn't keep them out of the parking lot, correct? 17 They can come back? 18 A: Sure. That's a possibility, yes. 19 Q: Right. The only way to keep them out 20 of that parking lot is to maintain a constant police 21 presence there, correct? 22 A: That would be true. 23 Q: Or tell them that if they stay in the 24 Park there's no problem, if they come into the parking 25 lot then you'll have to return, correct?
2621 A: That -- that's a possibility, yes. 2 Q: Right. Did you ever hear anybody at 3 any time the night of September 6th tell the occupiers 4 that if they went back into the Park and stayed out of 5 the parking lot the police didn't need to be there? 6 A: No. 7 Q: All right. You'd agree with me that 8 that might have been a pretty good thing to say at some 9 point to the occupiers to indicate why the police were 10 coming into the parking lot? 11 A: I believe I did testify that that was 12 a possibility that that could take place. 13 Q: It's certainly a possibility if 14 somebody showed up with a bullhorn and said, Get back 15 into the Park, that would have -- would have done 16 exactly what I'm saying, correct? 17 A: That -- that was not my role -- 18 Q: No, I appreciate that. 19 A: -- in the position I was in. 20 Q: I appreciate that but you -- you were 21 there, you heard what was going on? 22 A: To a certain degree, yes. 23 Q: Right. You never heard anybody say 24 that to anybody who was in the parking lot? 25 A: I already said I -- I did not hear
2631 that. 2 Q: Right. Your role was as an arrest 3 squad, correct? 4 A: That was our role, yes. 5 Q: You were the head of the arrest 6 squad, correct? 7 A: That is correct. 8 Q: You had seven (7) other people as 9 part of that arrest squad as organized by Staff Sergeant 10 Lacroix, correct? 11 A: That's correct. 12 Q: Right. Were you ever told what 13 people were going to be arrested for? 14 A: I don't specifically recall but I 15 knew what the arrest would be for. 16 Q: What would they be for? 17 A: I'm a police officer, there's a 18 number of offences; one (1) was a breach of the peace. 19 Q: Right. Any others? 20 A: Well, there's -- that was a public 21 access road so, you know, you're stopping traffic and the 22 enjoyment or the movement of traffic on a -- a road that 23 was public, so mischief. You could be -- you could be 24 guilty of mischief or just trespassing, there's different 25 things.
2641 Q: Right. Matheson Road was also a 2 public roadway, correct? 3 A: That's true. 4 Q: Okay. Nobody indicated that what we 5 need to do is clear Matheson Roadway in addition to the 6 parking lot, simply the parking lot, right? 7 A: On that night? 8 Q: That night. 9 A: We never went on Matheson Drove -- 10 Drive. 11 Q: That wasn't my question. 12 A: Matheson Drive was in between the 13 Park and the Provincial Park -- or the Army Camp 14 Provincial Park. To get to it, we would have had to have 15 gone through the Park and there was no way we were going 16 into the Provincial Park. 17 Q: All right. So you were of the 18 impression that Matheson Road was not accessible. 19 A: That is correct. 20 Q: Except through the Park? 21 A: At -- on -- on September 6th, yes. 22 Q: And why was it inaccessible that 23 evening as opposed to others? 24 A: Once the Park was occupied on 25 September 4th and on the evening of September 4th when we
2651 left, then that road became inaccessible or we would not 2 go on that road any longer. 3 Q: Can I ask for Project Maple, P-424, 4 to be presented to the Staff Sergeant? 5 6 (BRIEF PAUSE) 7 8 Q: Do you have that before you? 9 A: I do. 10 Q: Have you ever seen this before? 11 A: No. 12 Q: Do you have any idea what it relates 13 to? 14 A: We had a be -- I believe, yes. We 15 had a briefing on Maple so if this is the same basis of 16 that briefing, then I would maybe have some information. 17 Q: Do you know if it's the same as the 18 briefing? 19 A: I do not, no. 20 Q: If you can open it up a couple of 21 pages. 22 23 (BRIEF PAUSE) 24 25 Q: The first is at the tab that says
2661 "ERT/TRU". Do you have that tab before you? 2 A: Yes. 3 Q: Okay. There's a page afterwards; it 4 deals with checkpoints. And a page after that has a 5 title at the top, "Prisoner Van". 6 Do you see that? 7 A: Yes, I do. 8 Q: Okay. You had two (2) prisoner vans 9 at your disposal the night of September 6th, correct? 10 A: That is correct. 11 Q: And that was for the purpose of 12 transporting anyone that was arrested by your arrest 13 team, correct? 14 A: That's correct. 15 Q: All right. Reference is made in this 16 first paragraph that the prisoner vans, each of them, 17 will be equipped with Polaroid cameras. 18 Do you see that reference? 19 A: I do. 20 Q: Was there a Polaroid camera in the -- 21 either one of the prisoner vans you had that night? 22 A: I don't know. 23 Q: All right. Do you know what the 24 purpose of the Polaroid camera would be in a prisoner 25 van?
2671 A: Yes. 2 Q: What would that purpose be? 3 A: To take a picture of the prisoner. 4 Q: Right. It makes sense, right, in an 5 incident to take a picture of the person you're 6 arresting, correct? 7 A: That's correct. 8 Q: It certainly would have been of 9 assistance if we had any pictures of Cecil Bernard George 10 at the time he was loaded into the prisoner van. 11 A: There was no time to take a picture. 12 Q: There was no camera to take a 13 picture, correct? 14 A: I don't know if there was a camera. 15 Q: All right. Nobody pulled a camera 16 out of any part of this prisoner van to take a picture at 17 any point in time, correct? 18 A: I did not. I did not see a camera. 19 Q: All right. If you turn to the tab 20 that has "Investigation" -- do you have that before you? 21 A: I do. 22 Q: Right. If you move in two (2) pages, 23 there's something called an arrest report. 24 A: Yes. 25 Q: Did you have arrest reports with you
2681 the night of September the 6th? 2 A: I did not. 3 Q: Okay. Do you have any in the 4 prisoner vans to your knowledge? 5 A: Not to my knowledge. 6 Q: All right. The next page refers to 7 video cameras. Top line. "Preliminary Logistical 8 Requirements" is the headline. 9 A: Under "Logistics"? 10 Q: You just had the arrest report in 11 your fingers. And the next page as "Preliminary 12 Logistical Requirements". The reference is video 13 cameras. 14 A: Now, I see it. It's on the far right 15 side? I see that, yes. 16 Q: Yes, it is. 17 A: Yes. 18 Q: Was there a video camera available to 19 the arrest team either in the prisoner van or otherwise 20 the evening of September the 6th? 21 A: Not to my knowledge. 22 Q: Did you know why? 23 A: I don't know if there was or there 24 wasn't. To my knowledge there wasn't a video camera, to 25 my knowledge.
2691 Q: Right. As head of the arrest team it 2 would have been beneficial for you to know if there were 3 cameras or video cameras available for the purpose of 4 arresting people; you'd agree with that? 5 A: If it's normally carried in the 6 prisoner van then the people in the prisoner van would 7 have these items. 8 Q: The next -- the next page has a 9 chart. See that chart? 10 A: Yes. 11 Q: Do you see what's referred to as 12 action/ reaction and a number of scenarios on the left? 13 A: Yes. 14 Q: And you see a number of possible 15 charges on the right? 16 A: Yes. 17 Q: You testified earlier as a police 18 officer you're well aware of what charges could be laid 19 for people that were in the parking lot that evening. 20 Do you remember giving that evidence? 21 A: That's correct. 22 Q: All right. If you go down the column 23 that says, "action to take" in respect of any of the 24 charges and the situations listed on the left. 25 You'd agree with me that they all say
2701 direct to leave or turn back, correct? 2 A: That's correct. 3 Q: Right. And with respect to all of 4 the charges that you've been talking about, the 5 instruction generally is, leave or you'll be charged, 6 correct? 7 A: That's correct. 8 Q: Right. As a police officer you're 9 well aware that that's how you deal with situations of 10 people being in places you don't want them to be, 11 correct? You tell them to leave or they'll be charged? 12 A: That is an option, yes. 13 Q: Right. It would have been 14 appropriate this evening to tell them leave the parking 15 lot or you'll be charged; you'd agree with that? 16 A: It's a possibility, yes. 17 Q: You'd agree that that's how it should 18 have been done, if you're going to charge them with the 19 offences we've just talked about? 20 A: Again, it would depend on the 21 circumstances. 22 Q: Right. You testified that the first 23 approach by the CMU unit resulted in people clearing the 24 parking lot. Do you remember that? 25 A: That's my recollection, yes.
2711 Q: Right. And I take it then from our 2 earlier discussion that nobody said at that point in 3 time, stay in the Park, don't come back into the parking 4 lot, correct? 5 A: I did not hear that. 6 Q: Right. People then came back into 7 the parking lot, CMU clears them out of the parking lot 8 again, correct? Do you remember testifying to that? 9 A: Yes. 10 Q: And you thought your job had been 11 done because they're out of that parking lot? 12 A: That's correct. 13 Q: Right. And then they came back into 14 the parking lot again. Do you remember saying that? 15 A: That is correct. 16 Q: At that point in time, and correct if 17 I'm wrong, but my impression from your evidence is the 18 CMU then engaged them for the purpose of arresting them, 19 correct? 20 A: That ultimately happened. But first 21 we were -- the rocks came in; that's what precipitated in 22 my opinion, that movement. 23 Q: Well, you weren't surprised by rocks 24 coming in. They come in the previous two (2) days when 25 the police showed up, correct?
2721 A: Yeah, I was surprised, yes. 2 Q: You were surprised that rocks were 3 thrown at the police when they showed up September the 4 6th? 5 A: Yes, I was. Yes. 6 Q: You didn't expect that to happen? 7 A: I knew it was an expectation. Would 8 it happen, is another thing. 9 Q: So because they threw rocks, you say 10 that's when they were engaged to be arrested? 11 A: I think that precipitated part of 12 that, yes. 13 Q: Do I take it then that if they hadn't 14 thrown the rocks, they wouldn't be engaged to be 15 arrested? 16 A: Again, it depended on the action. 17 Q: Well you were there. I'm asking you. 18 You saw the actions. 19 A: If -- if they would have ran back 20 into the Park then we would have backed off again I 21 guess. 22 Q: You don't know? 23 A: Well, we weren't -- we weren't going 24 into the Park. 25 Q: Well, you weren't staying in the
2731 parking lot either, were you? 2 A: That's true, yes. 3 Q: All right. I'd suggest to you that 4 the reason why everybody was moving down the road and 5 making all the noise and forcing them back into the Park 6 was to be a show of force to show them that you were 7 there. 8 Do you agree with that? 9 A: That may have been the result, yes. 10 Q: That was the purpose of making all 11 the noise and forcing them back into the Park at 11:00 12 p.m. at night wasn't it? 13 A: It was -- my directions were clearing 14 the intersection. 15 Q: The intersection you're referring to 16 is actually the parking lot, correct? 17 A: That's correct. 18 Q: That's what you refer to as the 19 intersection? 20 A: Yes. 21 Q: All right. And you're not aware of 22 anybody actually -- out of the public wanting to use that 23 laneway to the beach at 11:00 p.m. Wednesday, September 24 the 6th are you? 25 A: I'm not privy to that, no, I wasn't -
2741 - I didn't have that information. 2 Q: Well, you weren't told we need to 3 clear this parkway because people want to go down to the 4 beach? 5 A: I believe I said I wasn't sure what 6 all the instructions were that -- but I don't 7 specifically remember that, no. 8 Q: Right. Well, the roads were cordoned 9 off. You already talked about that. Roadblocks were set 10 up to prevent people from going down to that exact 11 corner, correct? 12 A: I believe -- yes. 13 Q: Right. You'd agree with me that the 14 -- the roadblocks were actually effective. Nobody would 15 be coming down to that corner, correct? 16 A: Vehicle traffic, yes. 17 Q: So you think pedestrian traffic might 18 be heavy at 11:00 p.m. that night? Is that what you're 19 saying? 20 A: No, I'm not saying that. 21 Q: Right. So the process of clearing 22 this area I'm suggesting to you again was to be a show of 23 force and there was no other reason for doing so? 24 A: Again I think that's a better 25 question to ask of the people who were planning it.
2751 Q: I'm asking what you were told by the 2 Staff Sergeant who directed you down that roadway. 3 A: I believe I told you. 4 Q: Those are all my questions, Mr. 5 Commissioner. 6 COMMISSIONER SIDNEY LINDEN: Thank you, 7 Mr. Scullion. We'll take an afternoon break now. 8 THE REGISTRAR: This Inquiry will recess 9 for fifteen (15) minutes. 10 11 --- Upon recessing at 2:52 p.m. 12 --- Upon resuming at 3:12 p.m. 13 14 THE REGISTRAR: This Inquiry is now 15 resumed. Please be seated. 16 17 (BRIEF PAUSE) 18 19 CROSS-EXAMINATION BY MR. JULIAN FALCONER: 20 Q: Good afternoon, Sergeant Jacklin. 21 A: Good afternoon, sir. 22 Q: My name's Julian Falconer and I'm 23 Counsel for Aboriginal Legal Services of Toronto. 24 Now, your inter -- your fellow officers 25 and your interactions with Cecil Bernard George have been
2761 the subject of much questioning by numerous counsel, so-- 2 COMMISSIONER SIDNEY LINDEN: So you're 3 not going to go there? 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: The Commissioner will be happy to 7 hear that I don't have too many questions in this area, 8 but what I do have to ask is definitely, with respect, 9 new. 10 The first thing I want to know is in terms 11 of, and I don't intend to be very long in this area. 12 In terms of the time periods, lapse of 13 time periods and I understand you didn't have a stop 14 watch, but if you could just help me with approximations. 15 From the time you first see Cecil Bernard 16 George lying on the ground to the time you begin to 17 withdraw with him with your arrest team, that is you pick 18 him up and you start to walk away, how much time do you 19 think elapses? 20 21 (BRIEF PAUSE) 22 23 A: Fifteen (15) to thirty (30) seconds. 24 Q: Fair enough. So the events that are 25 -- you describe when you're trying to help my various
2771 friends in answering their questions are all a matter of 2 seconds? 3 A: That's true. 4 Q: All right. And the fifteen (15) to 5 thirty (30) seconds would include the first time you see 6 him, the witnessing of the struggling, the witnessing of 7 the kicking by a police officer, the stepping in by you 8 to safeguard the situation or act as a barrier and then 9 ultimately the picking up of the individual. 10 That would be the fifteen (15) to thirty 11 (30) seconds? 12 A: Yes. 13 Q: All right. And I understand it's not 14 about a stop watch, but in terms of your estimate of the 15 passage of time relative to the rest of the incident, 16 that would be a fair approximation? 17 A: Yeah, like you said, you're splitting 18 hairs, because there was a lot going on -- 19 Q: Fair enough. 20 A: -- but it wasn't very long. 21 Q: It was quick. 22 A: It was pretty quick, yes. 23 Q: All right. And it's fair to say that 24 in terms of the actions you undertook when you saw the 25 officer kicking Mr. George, you stepped in; yes?
2781 A: Yes. 2 Q: You created separation between the 3 officer and Cecil Bernard George, yes? 4 A: That is correct. 5 Q: And then in addition to creating 6 separation, you actually, yourself, participated in 7 restraining him somehow, that's -- 8 A: No. 9 Q: -- Cecil Bernard -- no. All right. 10 Who was it that actually then picks Cecil Bernard George 11 up to your memory? 12 A: I don't know which officers picked 13 him up. 14 Q: All right. And whoever does pick him 15 up, is it fair to say that that action of picking him up 16 would be within the fifteen (15) to thirty (30) seconds? 17 A: Yes, I -- yes. 18 Q: They basically whisked him up and you 19 took him out of there? 20 A: That's correct. There was a very 21 short time lapse. 22 Q: And I take it there was nothing 23 memorable that you recall about Cecil Bernard George in 24 any way assaulting the officers that were part of your 25 arrest team, to pick him up and take him away?
2791 A: As I stated earlier, when -- when I 2 first got there, when he was kicking and flailing, when I 3 moved ahead my focus wasn't very much on what was going 4 on behind me as much as creating the barrier and trying 5 to protect the people behind me. 6 So my observations behind; my focus was 7 more to the front. 8 Q: And by front and behind, what you're 9 trying to say is you would have actually moved past Cecil 10 Bernard George, sort of, you made yourself a human 11 barrier between him and the rest of the action, right? 12 A: That is true. 13 Q: And so he would -- him and other 14 members, him being Cecil Bernard George, and other 15 members of your arrest team would now be behind you, yes? 16 A: That's -- the people were behind me, 17 yes. 18 Q: Yes. But in a matter of seconds, you 19 would have turned around and he's whisked off, right? 20 A: Yes, because I turned and said, Let's 21 get out of here. 22 Q: And your simple point is, in those 23 seconds when you had your back to them while you were 24 being a human barrier, you don't know what was happening? 25 A: No.
2801 Q: Okay. And, when you say "no," you're 2 agreeing with me, correct? 3 A: I -- to say I never looked back. 4 Q: Okay. 5 A: That would, you know. 6 Q: And just so I understand, when you 7 turn around, though, to take him off, now you're facing 8 where he's going, right? 9 A: That's correct. 10 Q: And Ms. Johnson took you through all 11 that in detail, so I don't want to do it again. Suffice 12 to say that when you now are looking at him, you don't 13 see him assaulting members of the arrest team, do you? 14 You don't see Cecil Bernard George 15 assaulting members of the arrest team, do you? 16 A: When we leave? 17 Q: Yeah. 18 A: Yeah, I think he had been restrained. 19 Q: That's right. So when you say, "I 20 think he had been restrained", the answer to my question 21 I take it then is, no, I did not see him assaulting 22 members of the arrest team, correct? 23 A: That's correct. 24 Q: Okay. What I'm hoping to do is 25 perhaps refresh your memory. Do you recall that one of
2811 the members of your arrest team was one Officer Wilhelmus 2 Bittner? 3 A: Yes. 4 Q: I'm giving the thick -- I'm giving 5 the thick part of the transcript, Mr. Commissioner, 6 because I want the Witness to feel free to re -- it's not 7 that long but I want the Witness, and you, Mr. 8 Commissioner, to feel free to look at any part of that 9 transcript so you have some context. 10 This is during the trial of Cecil Bernard 11 George. And this is the evidence of Officer Bittner at 12 the trial in describing the -- the same events we've been 13 discussing. All right, Officer? 14 A: Yes. 15 Q: Now, what I wanted to ask you about 16 specifically, you'll find, first of all, at page 126 to 17 begin with. If you flip to page 126. 18 A: Yes. 19 Q: At page 126 so you -- this focusses 20 you to some extent. The first question is: 21 "Q: Did you know at that point..." 22 And this in examination-in-chief, by the 23 way, by the Crown attorney, so you know Mr. Van Drunen. 24 So at page 126, line 3: 25 "Q: Did you know at that point what
2821 the whole plan was for the entire group 2 of people proceeding down this road as 3 opposed to your own specific duty? 4 A: I had received information about 5 damage to a motor vehicle taking place 6 by members of the public that were in 7 the public beach area, and that there 8 was a disturbance being caused in that 9 area, and I believe [and it says, and 10 the drole was to clear the members, I 11 suspect it's goal but for the record it 12 does say drole] 13 the public members out of that public 14 beach area that were causing 15 disturbance. 16 Q: Go on please. What did you do 17 after you received the second 18 communication there was no firearm? 19 A: The Crowd Management Unit, 20 including myself, continued towards the 21 public beach area with the specific 22 intent of removing anyone obstructing 23 that area. 24 At that point in time I was at the rear 25 of the Crowd Management Unit. It was
2831 approximately fifteen (15) minutes [I 2 suspect that's metres] behind the most 3 front section." 4 And again, I say I suspect, sir, because 5 I'm just trying you with the record. 6 Now at the bottom of the page: 7 "A: As we approached the public beach 8 area, I did not observe anyone in the 9 public beach area and noted 10 approximately forty (40), it appeared 11 to be First Nations people. And these 12 people were along the fence line just 13 inside the Provincial Park area." 14 First of all, can I ask you, sir, that's 15 consistent with your memory; Officer Bittner's 16 recollection that people -- the people were not outside 17 the fence line but they were indeed inside the fence 18 line? 19 A: That's his recollection? 20 Q: That's his testimony, yes. 21 A: I believe when I -- I'm just going to 22 refer to my statement, but I believe when I was there I 23 observed somebody in the intersection. 24 Q: All right. Would you agree with me, 25 and -- and you can find this for yourself if you'd like,
2841 you'll see it at -- you do recall Officer Bittner being 2 part of your arrest team, don't you? 3 A: I do. 4 Q: And do you recall that in fact he was 5 virtually right beside you? And by that, if you turn to 6 page 153 of the transcript, 153. This is his cross- 7 examination by Mr. Dawson. The court actually, at line 8 10, is trying to clarify where Officer Bittner is in your 9 arrest formation. 10 You know how you had an arrest team of 11 eight (8) officers? 12 A: Yes. 13 Q: Okay. He asks Officer Bittner, and 14 this is the court asking: 15 "Just so we get this clear, when you 16 said earlier under cross-examination, 17 quote, 'I was left of the center in the 18 rear,' did you mean if you were looking 19 at it from the front? 20 A: I meant that it would have been 21 left of center. 22 THE COURT: Looking at it from the 23 front? 24 A: Yes, sir. 25 Just so we're clear now, [says Mr.
2851 Dawson of the court] if you're looking 2 at it from the rear, you're right of 3 center? 4 A: Yes. 5 All right." 6 So looking at it from the rear of the 7 formation, he was right of center and facing the 8 formation, he would have been left of center, okay? 9 I just want you to position that in your 10 own head. If there was another passage that did better 11 than this, I'd take you to it. But the others are more 12 bungled. 13 So bottom line is, this was an individual 14 looking from the rear who was right of center in the 15 arrest team, all right? Yes? 16 A: I don't know where he was. 17 Q: Well I -- I'm putting his evidence to 18 you. Do you know Officer Bittner? 19 A: I do. 20 Q: Reliable individual? 21 A: Yes. 22 Q: All right. And that's his testimony 23 under oath that's where he was. Do you have any reason 24 to dispute it? 25 A: No.
2861 Q: All right. You testified that you 2 were in the middle. 3 A: Yes. 4 Q: All right. Well we're talking eight 5 (8) people, so if he's from the rear right of center and 6 you're in the middle, at most he's two (2) officers away 7 from you, fair? 8 A: Or three (3) or four (4). 9 Q: Four (4) officers away from you? 10 A: Well, there's eight (8). 11 Q: There's eight (8), you put one (1) in 12 the middle, you have three (3) and four (4). At most 13 he's three (3) officers away from you, true? 14 A: I don't want to split hairs because-- 15 Q: Okay. 16 A: -- in the middle of eight (8) is -- 17 there's, you know, it puts -- there's going to be four 18 (4) on one (1) side and three (3) on the other. 19 Q: He's within feet of you; is that 20 true? 21 A: He would be, yes. 22 Q: Right. And, in any event, what he -- 23 and you -- and you go down in this cordon formation, as 24 depicted in the SIU formation. Do you want me to turn it 25 back up for you? It's -- it's basically a flat line
2871 formation, right? 2 A: I -- I agree with that picture on the 3 layout, as far as the people go. 4 Q: Right. But you agree with the layout 5 of the people? 6 A: Yes. 7 Q: And so you're basically shoulder to 8 shoulder and Bittner's maybe three (3) or four (4) 9 officers away from you, not many feet away from you, 10 right? 11 A: We wouldn't have been shoulder to 12 shoulder, but shoulders across, yes. 13 Q: Right. And in being in that position 14 he witnesses, according to his evidence, First Nations 15 peoples inside the fence. All right? And -- and I'm 16 helping you out with where he was. 17 A: That's correct. 18 Q: Can you tell me whether you think 19 that's consistent with your recollection, or not? And if 20 there's notes you want to check or -- you please -- 21 please feel free. A: I -- 22 Q: I just want to know if your 23 recollection's the same as his. 24 25 (BRIEF PAUSE)
2881 A: I'm trying to find the spot in my 2 book of my statements. 3 4 (BRIEF PAUSE) 5 6 A: What I recall, as mentioned in my 7 statement, when we first -- or I first observed the 8 intersection that there was lights being shone on us, and 9 I recall two (2) lights and I observed a number of people 10 run from the intersection back into the Park; that's my 11 recollection by my statement. 12 Q: All right. And -- and what portion 13 of your statement are you reading from please, the page 14 number? 15 A: Page 2. 16 Q: Thank you. Now, if you flip to page 17 127 of that same transcript that was in front of you, at 18 line 8, it's just that Officer Bittner says something 19 else: 20 "I also noted two (2) large bonfires 21 burning along the fence line." 22 Do you see that? 23 A: I do. 24 Q: "Q: When you say along the fence 25 line, inside the Park?"
2891 A: Inside the Provincial Park." 2 And by the way, to be fair to you, he also 3 makes further reference: 4 "There were also numerous people inside 5 the Park screaming and yelling." 6 Right? I just point that out to you. Is 7 that consistent with your recollection that there were 8 bonfires but they were inside the Park? 9 A: I do remember fires -- a fire. 10 Q: Right. 11 A: I don't know if there was fires, but 12 I do remember a fire on the backside of the -- in the 13 Park, yes. 14 Q: Right. And in particular, because 15 Officer Bittner is asked about this and he says that 16 they're inside the Park, in particular he did not see any 17 bonfires outside of the Park, true? 18 A: True. 19 Q: Okay. Now, in terms of Mr. Cecil 20 Bernard George, you had indicated, as I understood, that 21 you had difficulty remembering what the officers around 22 Cecil Bernard George were doing when you first 23 approached, correct? 24 You couldn't really -- you said that you 25 remembered several officers around him, and I don't want
2901 to go over all the stuff that was gone over before, I'm 2 just pointing out that's what your evidence is so far. 3 And you do remember one (1) officer 4 kicking him, but aside from that you can't help us really 5 from a memory point of view, correct? 6 A: That's correct. 7 Q: Okay. Good. Could you -- what I'm 8 going to suggest to you, sir, if you could look at 130, 9 because Officer Bittner does seem to remember, and I want 10 to see whether your memory is in any way refreshed by 11 this. 12 13 (BRIEF PAUSE) 14 15 Q: At page 129 on the bottom, actually, 16 is -- is easier to look at. 129 on the bottom. It's 17 line 29. So 129 on the bottom. 18 And this is still examination-in-chief by 19 the Crown Attorney. 20 "Q: My question is: Where's the 21 contact squad and everybody who'd been 22 ahead of you at the time when you 23 approached this individual on the 24 ground." 25 Right. Just so you can satisfy yourself,
2911 sir, we're talking about Cecil Bernard George all right? 2 A: Yes. 3 Q: "A: The contact squad is still 4 ahead of me and there's some members 5 from the contact squad with this male 6 party. 7 Q: Doing what? 8 A: Well, the male part was on his 9 stomach and they were attempting to 10 secure his arms behind his back." 11 Stopping there, sir, officer. Stopping 12 there. Does that assist you somewhat, do you recall some 13 officers attempting to secure Cecil Bernard George's arms 14 behind his back? 15 A: I don't recall that, no. 16 Q: All right. Let's keep going. 17 "Q: How? 18 A: What I observed were black, we 19 commonly call them flex cuffs and 20 basically it's a nylon plastic 21 restraint, almost like a twist tie, 22 which is self closing. 23 Q: Yes. What was being done with 24 that? 25 A: They were attempting to put it on
2921 this male party's wrist. 2 Q: What was going on with him in 3 reaction to that? 4 A: I noticed there were two (2) 5 police officers. They were struggling 6 with this individual and they were not 7 able to get the plastic flex cuff on to 8 his wrists. I then focussed on his 9 feet. We also had some flex cuffs for 10 his feet. 11 I removed this person's construction 12 boots which he was wearing, to 13 accommodate the officer in securing the 14 legs. 15 Q: What happened with his hands? 16 A: After the legs were secured, I 17 noticed they were still having some 18 problems attaching the nylon restraint. 19 I removed my metal cuffs from my pouch 20 and I then placed them on the male 21 person. 22 Q: All right. At that point he's 23 been cuffed by the legs and cuffed by 24 the hands? 25 A: That's correct.
2931 Q: What's his physical condition as 2 far as you observed, as far as injuries 3 go then? 4 A: At that time, I did not note any 5 injuries but I assisted in carrying him 6 to the police van which was located 7 approximately fifteen (15) metres away 8 from the situation." 9 Do you see that? 10 A: I do. 11 Q: All right. Now, first of all, can I 12 suggest this to you. Officer Bittner recalls not only 13 efforts to place cuffs on Cecil Bernard George's wrists, 14 initially unsuccessful, but that he, himself, removed 15 Cecil Bernard George's boots and placed leg cuffs on his 16 feet and then successfully, himself, simply placed cuffs 17 on Cecil Bernard George's hands. 18 Does that refresh your memory on what 19 happened? 20 A: No, it doesn't. 21 Q: Now, did you notice here, a brief 22 indulgence, did you notice here in this description by 23 Officer Bittner that he makes no reference to being 24 kicked or attacked by Cecil Bernard George? I'm talking 25 about Officer Bittner.
2941 A: True. 2 Q: And would you agree with me that the 3 entire process, according to your evidence, took fifteen 4 (15) to thirty (30) seconds? That was your evidence; 5 yes? 6 A: That's correct. 7 Q: So in the fifteen (15) to thirty (30) 8 seconds, if Bittner's accurate in what he says, in 9 fifteen (15) to thirty (30) seconds, your arrest team 10 happens on the scene, you see, or one (1) of the members 11 of your arrest team, Bittner, sees an effort by two (2) 12 officers with Cecil Bernard George's arms behind his back 13 applying cuffs to his wrists. 14 That same member actually himself 15 successfully removes his boots and applies leg cuffs and 16 then applies his own set of cuffs to his wrists and they 17 cart him away, in fifteen (15) to thirty (30) seconds, 18 yes? 19 A: I didn't observe what they were 20 doing. I was in front. 21 Q: All right. But you don't contest 22 this version of events by Officer Bittner, do you? 23 A: I have no reason to contest his -- 24 those events. 25 Q: Okay. So you're not going to
2951 suggest, for example, that Cecil Bernard George attacked 2 officer Bittner, are you? 3 A: I don't believe I ever said that. 4 Q: No. And you're not going to suggest 5 that Cecil Bernard George attacked the two (2) officers 6 who had his arms behind his back, are you? 7 A: I think your suggestion there, the 8 arrest team members that are there now. 9 Q: I'm sorry? 10 A: At this time. This is when now the 11 arrest team -- 12 Q: The fifteen (15) to thirty (30) 13 second period when you happen on the scene. You're not 14 going to suggest, are you, you might, I just want to 15 know, you're not going to suggest, are you that Cecil 16 Bernard George was attacking the two (2) members that had 17 his arms behind his back trying to put the cuffs on his 18 wrists, at that time, in the fifteen (15) to thirty (30) 19 seconds? 20 A: That's correct. I believe I said the 21 arrest team restrained him. 22 Q: Fair enough. The only reason I ask 23 you that is that if that's true, that all you saw was a 24 fifteen (15) to thirty (30) second clip of which you 25 missed part of it because your back was turned to it, how
2961 could you have possibly told Ms. Vella that the use of 2 force in kicking this individual was reasonable, when you 3 didn't see anything? 4 A: I did see. What I said is we -- when 5 we approached the person on the ground that he was 6 kicking and he was flailing and the officers that were 7 engaged with him at that time, one (1) of the officers 8 kicked him. 9 After the arrest team got there they 10 restrained him. I believe that's what I've said. 11 Q: So it's your evidence that Cecil 12 Bernard George was kicking officers violently, right? 13 That's your evidence. 14 A: From the little snip of a time that I 15 saw him before I got there, that's what he was doing. 16 Q: And that same person who was kicking 17 officers violently, that same person Bittner simply 18 removed his boots and applied cuffs to his legs, right? 19 A: I don't know. 20 Q: All right. Well, I just -- I was 21 struck by the fact that when Bittner happens on the scene 22 which has to be the same tame as you, agree? 23 A: Yes. He would be, yeah. 24 Q: Right. When Bittner arrives on the 25 scene, he doesn't make reference to his violent kicking.
2971 Now, if you turn to Tab 25, page 3 of your statement, 2 that's exactly what you describe; an individual was 3 violently kicking officers. 4 Do you remember saying that? 5 A: I think I just said it a minute ago. 6 Q: It's just -- you don't see any 7 contrast between a man who removes his construction boots 8 and applies his cuffs and your description of a man who's 9 violently kicking officers, you see no contrast? 10 A: I would imagine at this time that 11 Officer Bittner was being assisted by other officers as 12 well. But I'm not going to draw that inference. I -- 13 because I didn't -- there was other officers that were 14 with him at the same time. 15 Q: He doesn't say that in his 16 description, you agree with me? 17 A: Well, not right there. He might -- 18 Q: He simply describes what he did. 19 A: That's correct. 20 Q: All right. Now, the other thing I 21 wanted to ask you about is whether -- when answering Ms. 22 Vella's question and this is -- has not been asked of you 23 before, but in answering Ms. Vella's question that the 24 force in kicking was reasonable whether, as part of your 25 training, you know that every citizen -- every citizen,
2981 non police officers and officers are entitled to repel 2 reasonable force -- I'm sorry, are entitled to repel 3 force with reasonable force. 4 You -- you know that? That if someone's 5 the subject of unlawful force, they're entitled to repel 6 that unlawful force withe reasonable force? You know 7 that, right? 8 A: I wouldn't disagree. 9 Q: Pardon me? 10 A: I agree. 11 Q: Right. So you could happen on a 12 situation where a citizen, I mean conceivably, a citizen 13 is applying force to a police officer, but if you haven't 14 seen how the interaction started, that citizen may well 15 be legally and lawfully defending themself, true? 16 A: True. 17 Q: So when you told Ms. Vella that the 18 force that that officer applied to the body of Cecil 19 Bernard George in kicking him was reasonable, you had no 20 idea how the altercation started did you? 21 A: I believe what I had said is that 22 from what I saw I couldn't form what the officers' 23 opinions were, the other officers, I can't read his mind 24 of what happened before I got there, but from what I 25 observed, the officer kicked him in response to the -- to
2991 the kicking and the thrashing that the person on the 2 ground was doing. 3 Q: By the person with the two (2) arms 4 behind their back -- 5 COMMISSIONER SIDNEY LINDEN: Okay. You 6 indicate -- 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 MR. JULIAN FALCONER: -- two (2) arms 10 behind their back, right? 11 COMMISSIONER SIDNEY LINDEN: Yes. Mr. 12 Jones...? 13 MS. KAREN JONES: Mr. -- Mr -- 14 MR. JULIAN FALCONER: Well, I -- 15 COMMISSIONER SIDNEY LINDEN: No, no, just 16 stop. 17 OBJ MS. KAREN JONES: -- Mr. Commissioner, I 18 object to this line of questioning because it 19 inaccurately reflects what this Witness has said -- 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MS. KAREN JONES: -- and it is grossly 22 unfair. 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MS. KAREN JONES: He has talked about a 25 series of events and things he saw prior to getting up to
3001 the person on the ground and he's talked about what 2 happened. 3 And Mr. Falconer is incorrectly to be 4 putting to him evidence and putting inferences to him 5 that can't be drawn from his evidence. 6 COMMISSIONER SIDNEY LINDEN: You 7 indicated you were going to be very brief, Mr. Falconer. 8 MR. JULIAN FALCONER: Fair enough. 9 COMMISSIONER SIDNEY LINDEN: I -- I -- 10 MR. JULIAN FALCONER: I'm on the last 11 area of this portion. I'll rephrase the question so that 12 we don't have to -- to make submissions on this. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: You said you only saw a piece of it, 16 right? 17 A: Yes. 18 Q: And you know that the -- that a 19 citizen's right to use force against even a police 20 officer may be judged by the legality of the force 21 initially used on the citizen? You know that? 22 A: That -- that's true. 23 Q: And so -- and you to this day do not 24 know how the altercation commenced with Cecil Bernard 25 George and the extent to which it was lawful, correct?
3011 A: I believe I -- I've said that I did 2 not see what transpired. 3 Q: Fair enough. So would you agree with 4 me that on reflection even though you were asked the 5 question, if for example, the force applied to Cecil 6 Bernard George wasn't lawful force in the first place, 7 then the kick by the police officer would not be 8 reasonable? 9 Would you agree with that? 10 A: I can't draw that conclusion. 11 Q: But you were able to draw the 12 conclusion that the kick was reasonable yesterday weren't 13 you? 14 A: I said based on what I saw. 15 Q: Thank you. Now, did you -- your 16 testimony was you saw kicks, did you see anyone striking 17 Cecil Bernard George with a baton? 18 A: No, I did not. 19 Q: And the reason I ask you that is, 20 again I'm -- I'm not confused, Bittner would have been in 21 the same place you were approaching the scene from the 22 same direction you were, right? 23 A: We would have moved forward together. 24 We would have been spread out across the road so we would 25 have been in the same area, yes.
3021 Q: All right. Could you turn please 2 because I want to see if I can refresh your memory in 3 terms of what you saw, if you look at page 155 of the 4 Bittner evidence? 5 6 (BRIEF PAUSE) 7 8 Q: At line 15 -- page 155 line 15 do you 9 see that? 10 A: I do. 11 Q: Now, he's talking about Cecil Bernard 12 George; it's an ongoing questioning of -- of the 13 interaction with him. 14 "Q: Now, did you yourself ever strike 15 the individual who was arrested in any 16 way? 17 A: No, I did not. 18 Q: Did you ever see anyone else 19 strike the individual who was arrested 20 in any way? 21 A: I was the individual being hit 22 with the baton in the upper body area. 23 I do not know who it was but I did see 24 the baton striking him. 25 Q: How many times did you see him
3031 strike with the baton -- see him struck 2 with the baton? 3 A: I recall at least twice and that 4 was on the -- I would have been 5 directly behind him, it was on his 6 right side of his body. 7 Q: At that point he was face down? 8 A: Yes, sir. 9 Q: So he would have been struck on 10 his right side? 11 A: On his right side, yes." 12 Top of page 156: 13 "Q: Did you mean to the arm area or 14 chest area and torso? 15 A: What I saw was the shoulder/upper 16 arm area. 17 Q: Did you ever see him struck in the 18 face or anywhere? 19 A: No, I did not. 20 Q: Did you ever see him beaten in the 21 abdomen? 22 A: No, sir. 23 Q: Nothing you saw could account for 24 serious abdominal injuries? 25 A: No, any time I saw him he was on
3041 his belly, sir." 2 Now, having read the account of Officer 3 Bittner does that refresh your memory as to whether Cecil 4 Bernard George was being struck with a baton? 5 A: I never saw Cecil Bernard George 6 being struck with a baton. 7 Q: All right. I was interested in your 8 evidence that -- that striking -- that -- that wood and 9 metal would be the same. Do you remember testifying that 10 the -- the new ASP's were steel, right? 11 A: Correct. 12 Q: And the old baton was wood? 13 A: Yes. 14 Q: And it was your evidence that in 15 administering strikes to people that they would have the 16 same impact, the steel and the wood. Do you remember 17 saying that? 18 A: Yes, I do. 19 Q: All right. Would you like to re- 20 think that just -- 21 A: No. 22 Q: -- instead of me criticizing you or 23 critically cross-examining you about it could you 24 reconsider that just for a moment. May I ask you, sir, 25 the ASP we're talking about and I'm not trying to be
3051 dramatic when I do this, the way it's deployed is you 2 flash your arm and it flies out at twenty-six (26) 3 inches, fair? 4 A: That's correct. 5 Q: Right. And it whips out, right, 6 that's the point of it? 7 A: It extends, yes. 8 Q: With a snap, true? 9 A: We have to snap it so it stays in one 10 (1) piece. 11 Q: No, it's -- that's not -- it's -- but 12 that's how it works, right? 13 A: That's how we open it, yes. 14 Q: Right. And it's steel and it's your 15 evidence that the steel would have the same impact on 16 somebody's body as a wooden stick, is that true -- 17 A: Well -- 18 Q: -- on reconsidering? 19 A: -- I've never done any -- I don't 20 have the expertise or the test to see what kind of force 21 is generated with an ASP over a wooden baton, what I was 22 doing was drawing a general inference that they're both 23 hard and you both strike them and use them the same. 24 The only difference is how you open it and 25 I believe I said the ASP is smaller and easier to carry
3061 on the belt. 2 Q: But accepting that you don't have any 3 expertise would you then agree with me about 4 distinguishing between how a steel ASP strikes and does 5 damage versus a wooden baton, would you agree with me 6 that it's at least reasonable to infer that a steel ASP 7 struck with the same force as a wooden stick would do 8 more damage to a human being? 9 A: I can't determine that. 10 Q: All right. Now, by the way, for the 11 record, the evidence of Officer Bittner was given on July 12 15th, 1996. And I propose to file this transcript as the 13 next exhibit. 14 THE REGISTRAR: P-1423, Your Honour. 15 16 --- EXHIBIT NO. P-1423: Examination-in-chief and 17 Cross-examination of 18 Wilhelmus Bittner 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: Another memory of your arrest team is 22 an officer Root, correct? 23 A: Correct. 24 Q: Again, is it fair to say that you 25 have no reason to question his reliability, from your
3071 point of view? 2 A: No. 3 Q: All right. He gave evidence on July 4 17th, 1996. 5 6 (BRIEF PAUSE) 7 8 Q: Now, the front page of this document 9 says Wayde Jacklin. The only reason it says that it is 10 because the only place we found the date on the document, 11 so I apologize for that. 12 It's just that it allows us to identify 13 the date of the -- so flipping in a page, you'll see this 14 is the evidence of James Root, and it starts at page 307 15 at July 17th, 1996 in the trial of Cecil Bernard George. 16 Now, the portion I quickly want to ask you 17 about, and I expect this will be quite a bit faster than 18 the last transcript. 19 You'll see at page 308, line 9, page 308, 20 Officer Root testifies: 21 "Q: What was your objective as far as 22 you understood it? 23 A: I was assigned as part of an eight 24 (8) man arrest unit at the rear of the 25 crowd management formation. Our
3081 objective, in my opinion, was to move 2 occupiers of the Ipperwash Provincial 3 Park off of the intersection of Army 4 Camp Road and East Parkway Drive." 5 And then at page 314, at the beginning of 6 his cross-examination, which is brief. Cross-examination 7 by Mr. Dawson, line 29, page 314: 8 "Q: Officer, the ten (10) people from 9 the front elements to the CMU were 10 engaged. All of them with the man in 11 some sort of struggle; is that right? 12 A: I believe so, yes. 13 Q: Did you see people hitting him? 14 A: I believe I did see him being 15 struck, yes. 16 Q: With batons? 17 A: Yes. 18 Q: Did you see people kicking him? 19 A: No, I didn't. No, sir, I did not. 20 Q: How many times did you see him hit 21 with the baton? 22 A: I don't have a figure, I don't 23 know, sir." 24 And asking you then again, first of all, 25 Officer Root would have been in that line with you as
3091 part of the arrest team, correct? 2 A: That's correct. 3 Q: Much as you approached Cecil Bernard 4 George with Officer Bittner, within shoulder lengths of 5 you, same thing applied to Officer Root? 6 A: That's correct. 7 Q: He would have been in a position to 8 see what Bittner saw and you saw. 9 A: He would have made his own 10 observations, yes. 11 Q: And I'm again asking you to reflect 12 back. Is it possible you saw Officers hitting Cecil 13 Bernard George with their batons? 14 A: No. 15 Q: You'd agree with me, though, that 16 there are many different reasons for different evidence 17 by individuals. And I'm not asking you to be an 18 adjudicator or say that somebody's lying or whatever. 19 I'm talking about just different accounts, 20 and from your work as an investigator, you'll get 21 different statements by eye witnesses to the same event. 22 A: Under high stress situations, what 23 people see -- based on what they see, what they're doing, 24 are all going to have different recollections. 25 Not because anybody's trying to cover
3101 anything up, it's because different things and people 2 have different focusses. 3 Q: Right. But as an investigator, 4 surely you don't -- aren't quite that ideal. I mean you 5 do take into account a possibility, when you're doing an 6 investigation of differing accounts, that people might be 7 covering up, right? 8 You don't just wipe that out? 9 A: Prime example, in my career 10 investigating traffic accidents, people involved in the 11 same traffic accident -- 12 Q: Sure. 13 A: -- under traumatic situations have 14 totally different recollections of what took place. 15 Q: Very much so. And leaving that aside 16 for a minute, what I am asking you is this: One of the 17 things that affects what you see, and your account, 18 leaving aside a deliberate falsification, one of the 19 things that affects what you see is whether somebody's 20 obstructing you for brief seconds, right? 21 A: That is absolutely true. 22 Q: And another thing that might account 23 for you not seeing something somebody else is, is your 24 attention may be drawn away from the incident to another 25 part of the incident, right?
3111 A: I believe that's what I have said. 2 Q: Yeah. Right. And so it may not be 3 that Root or Bittner's mistaken, it may be you just 4 didn't see it, right? 5 A: That is correct. 6 Q: Okay. You testified about your 7 impressions of the Korosec statements that Mr. Rosenthal 8 took you through and Ms. Johnson took you through too and 9 I -- and I don't want to go back over all that I just -- 10 I have something additional to ask you. 11 Do you remember you attributed it to 12 Korosec's lack of sleep and venting, bottomline, right? 13 A: Correct. 14 MR. JULIAN FALCONER: And -- and I 15 apologize for the short forming, Mr. Commissioner, I'm 16 trying to get right to the point as fast as I can. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: And what I was curious about you -- 21 you said you didn't report it but the part that I was a 22 bit confused is you didn't ascribe that same limitation 23 to Mark Wright did you? 24 You didn't say Mark Wright was exhausted 25 and was venting and I knew that and so I didn't take what
3121 he said seriously? 2 You didn't say that did you in your 3 evidence? 4 A: I don't know if I was ever asked a 5 question about Mark Wright's comments. 6 Q: Fair enough. So let me do that. If 7 Stan Korosec was telling the truth when he told you that 8 Mark Wright told him that he was amassing a fucking army, 9 if -- I -- I'd be happy to go back to this because to be 10 fair to the record I should probably give you the exact 11 line so that there's no confusion. 12 I try to short form it. Sometimes it 13 works and sometimes, Mr. Commissioner, it's better to go 14 to the document. 15 16 (BRIEF PAUSE) 17 18 Q: It's Tab 20 at the bottom of page 3. 19 "I was talking to Mark Wright tonight." 20 Do you see that? 21 A: I do. 22 Q: "I was talking to Mark Wright 23 tonight. 24 A: Hmm hmm. 25 STAN KOROSEC: We want to amass a
3131 fucking army. 2 Hmm hmm. 3 A real fucking army and do these 4 fuckers big time but I don't want to 5 talk about it because I'll get all 6 hyped up." 7 Did you inquire of Mark Wright whether he 8 stated to Stan Korosec words to the effect of, We're 9 amassing an army? 10 A: No, I did not. 11 Q: All right. And if Stan Korosec or 12 the -- what I say is a reasonable reading of this 13 passage, if Stan Korosec was accurate in what Mark Wright 14 told him or what he took from his conversation with Mark 15 Wright, that's not about Stan being exhausted anymore is 16 it? I mean it's about what Mark Wright tells him. 17 If one takes from this passage that in a 18 conversation with Mark Wright, Stan Korosec developed the 19 impression that, quote: 20 "We want to amass a fucking army and do 21 these fuckers big time." 22 I mean that comes from Mark Wright. 23 That was the point of what he was telling 24 you, right? 25 A: I don't know what -- how that was
3141 interpreted or how -- 2 Q: Sure. But I just wanted to know 3 because we've heard a lot about Stan from you but you 4 didn't actually know whether Mark Wright was to be taken 5 seriously or not to be taken seriously and you didn't 6 know his condition when he allegedly made these 7 references, right? 8 A: I'm getting this third hand so... 9 Q: Sure. But you never made inquiries? 10 A: No. 11 Q: Okay. You testified that your notes 12 were not created that night because there was no time? 13 A: On September 6th? 14 Q: Yes. 15 A: That's correct. 16 Q: I want to understand though you did 17 make your notes subsequently? You made notes? 18 A: Yes. 19 Q: You found time? 20 A: For September 6th? 21 Q: Yeah. You found time subsequent to 22 September 6th to make your notes? 23 A: Yes, and those consisted of about 24 eight (8) lines. 25 Q: Hmm hmm. Is there a regulation you
3151 know of under the Police Services Act or the governing of 2 the OPP in 1995 that said you could describe a serious 3 incident in eight (8) lines because originally you didn't 4 have time to make notes? 5 Do you know of a regulation like that? 6 A: Notes are made as soon as practical 7 and again based on the circumstances. 8 Q: Sure. And in fact the expectation is 9 by a police officer that notes are made contemporaneous 10 with the incident as much as possible, correct? 11 A: Under normal circumstances. 12 Q: And would you agree with me that an 13 officer's notes can potentially represent a very 14 important record of an incident, especially a serious 15 incident? 16 A: Yes. 17 Q: Would you agree with me that you're 18 trained to take steps to make your notes as soon as 19 possible after the incident, yes? 20 A: As soon as possible, yes. 21 Q: All right. That night you didn't 22 make your notes at any point? 23 A: It was impractical. 24 Q: At what point did it stop being 25 impracticable that night?
3161 A: When I -- we were ordered back to the 2 Acorn Lodge -- 3 Q: Yes. 4 A: -- I believe I was maybe in bed an 5 hour. We probably worked probably, I can't remember 6 exactly, I'm sure twenty-four (24) to thirty (30) hours. 7 Then I was summonsed to go to the Forest Detachment at 8 which time I provided a statement of the events. 9 Once I provide that statement now there 10 was a record of the events. I did not transfer that 11 statement into my notebook. 12 Q: Can we go to the statement first of 13 all. And -- and just so I understand. So you -- you see 14 -- it -- it's obvious that you worked very hard, right? 15 You went long hours, yes? 16 A: Yes. 17 Q: And I say this with all due respect, 18 sir, no one told you that you were authorized or entitled 19 to go to sleep before making your notes. No senior 20 officer said to you, sir, you can sleep and don't bother 21 with your notes. 22 Did anybody say that to you? 23 A: No. 24 Q: So as soon as practical in your mind 25 today and then means that you go and get rest first
3171 before you prepare your notes? 2 A: We were told to get rest. Put 3 everything aside and get rest. 4 Q: Now can you show me this report that 5 you felt replaced your notes? Which tab? If you look at 6 the index. 7 Are you referring to the report at Tab 25, 8 Exhibit P-1415? 9 A: Yes. 10 Q: And you felt that this statement 11 provided at 11:00 a.m. on September 7th replaced your 12 notes, is that right? 13 A: That's correct. 14 Q: Did anyone tell you that it replaced 15 your notes? 16 A: No. 17 Q: Have you ever participated in an 18 investigation where you as an officer in a serious 19 incident were exempted from preparation of notes because 20 you subsequently gave a statement? 21 Has that ever happened in any other 22 serious incident you were involved in? 23 A: I believe I've given statements that 24 were pertaining to things that weren't in my notebook, 25 absolutely.
3181 Q: And you were thereby exempted from 2 taking notes? 3 A: No. 4 Q: Now I ask you this question, sir, 5 because you do appreciate that part of the process in 6 accountability providing this statement that you gave, 7 the SIU investigation, the ultimate justices and trials. 8 Part of that entire process is to ensure a certain level 9 of public confidence in policing. 10 You know that, right? 11 A: Absolutely and that's a position I 12 take very strongly. 13 Q: And you know that to the extent that 14 -- that a matter engaged in by police, a police action, 15 especially one (1) resulting in lethal force, but any 16 serious police action, whether what happened was right or 17 wrong in terms of justification, it is very important the 18 police appear to be accountable and transparent in their 19 actions after the event. 20 You agree with that, don't you? 21 A: That's correct. 22 Q: And you understand that in 23 circumstances where a police action may well have been 24 legitimate, that there can be a taint on confidence in 25 policing if police behaviour after the fact isn't with
3191 the highest of integrity, you know that? 2 A: Absolutely. 3 Q: Did you ever direct your mind to the 4 propriety of assisting Norman Peel in his defence of 5 Kenneth Deane? 6 A: Did I do what? 7 Q: Direct your mind -- 8 A: Yes. 9 Q: -- how it would look to assist Norm 10 Peel in his defence of Kenneth Deane? 11 A: Every single time I've testified or 12 given a statement, it's been true to the best of my 13 knowledge and that was the only basis of any statements 14 I've made. 15 Q: Fair enough. That's your evidence 16 and now -- could you now direct yourself to -- to the 17 remainder of my question which was, did you direct your 18 mind as to how it would look to assist Norman Peel in the 19 defence of Kenneth Deane? 20 A: No. 21 Q: In criminal investigations, you end 22 up as an officer and the standard discharge of your 23 duties, assisting various Crown Attorneys in prosecutions 24 of cases. 25 That's a typical function you serve; yes?
3201 A: That's correct. 2 Q: Can you think of many cases in which 3 you attended the home of the defence lawyer to provide 4 the defence lawyer a statement to assist the defence? 5 A: I don't believe I ever have. 6 Q: With the exception of Mr. Peel, of 7 course. I thought I heard you, maybe I misheard you, I 8 thought I heard you say that you went to Mr. Peel's house 9 and gave him a statement. 10 A: I was asked to attend that -- his 11 residence, which I did, to his office and... 12 Q: Oh, I'm sorry. I heard residence and 13 now you've mentioned office, so we should be clear for 14 the record. Which one? 15 Did you attend his home or did you attend 16 his office? 17 A: I think I just said I attended an 18 office in his residence. 19 Q: All right. And that would be, then, 20 the only time you've ever done that? 21 A: I believe so, yes. 22 Q: All right. But you've also candidly 23 said that you really didn't direct your mind to how that 24 would look? 25 A: No.
3211 Q: Okay. 2 3 (BRIEF PAUSE) 4 5 Q: You testified in answer to questions 6 in-chief that one (1) of the areas or bases that you had 7 for believing that there was a viable threat, as you put 8 it, of weapons in the Park was the claims by non-Native 9 residents as to what they heard by way of firing of 10 weapons. 11 Do you remember talking about that? 12 A: I do. 13 Q: And you testified, quote: 14 "That you had no reason to doubt the 15 accuracy of those claims." 16 Close quotes. Correct? 17 A: Correct. 18 Q: Now these weren't fellow police 19 officers? 20 A: That's correct. 21 Q: And these were people who you knew 22 were involved in a very difficult community problem in 23 respect of the assertion of land claims in their back 24 yard, true? 25 A: True.
3221 Q: It was a tense time, yes? 2 A: Yes. 3 Q: But you had no reason to doubt the 4 accuracy of what those non-Native people told you, 5 correct? 6 A: I had no reason to believe they were 7 giving me a mis -- I was getting misinformation from 8 anybody. 9 Q: Did your faith apply the same way to 10 First Nations people? 11 A: Yes. 12 Q: We've heard evidence that CMU and TRU 13 had never worked together like this before, right? That 14 was the evidence of Skinner, head of TRU, right? I 15 apologize for using last names, I'm referring to 16 Inspector Skinner. 17 We've heard him test -- he testified 18 before the Commission that TRU had never worked with CMU 19 like this before. 20 Did you know that? 21 A: I believe that to be true. 22 Q: Okay. And you might say correct, 23 because we're going to get all messed up between TRU and 24 true. 25 A: Okay.
3231 Q: You should have seen it with Mark 2 Wright, right? 3 So in terms of process, though, so I 4 understand it, you had some understanding of what TRU was 5 doing, but really you didn't know where Sierra teams were 6 going. 7 That wasn't something you were informed 8 about? 9 A: Not the specifics of what TRU was 10 doing, no. 11 Q: Okay. And Ms. Vella put it that 12 there was an unqualified task, clear the sandy park and 13 you see Bittner and you see Root and they say pretty well 14 the same thing, correct? 15 A: That's correct. 16 Q: If Wade Lacroix had been told 17 something different than simply clear the sandy parking 18 lot, if Wade Lacroix had been told, we want you to go 19 half way down the road, not more than four hundred (400) 20 metres and stop, make some noise and be a diversion, so 21 we can put eyes in place, certainly that was not 22 something you were ever told, correct? 23 A: That's correct. 24 Q: In fact, you were told to go down the 25 road, all the way, right?
3241 A: I don't recall that being said, that 2 we're going all the way down the road in those words -- 3 Q: Well, fair enough. 4 A: -- but we were going to the area of 5 the sandy parking lot. That was my understanding. 6 Q: And clearing the sandy parking lot 7 includes an eight (8) person arrest team, right? 8 A: That's correct. 9 Q: And you were part of that; you headed 10 it? 11 A: That's true. 12 Q: And you knew the function was to get 13 to the parking lot before you can clear it, right? 14 A: Yes. 15 Q: So you'll work with me in the sense 16 that part of the order was to get all the way down the 17 road? 18 A: I believe that was the intent that we 19 were going to go all the way down the road, yes. 20 Q: Right. I believe this is Exhibit P- 21 1361 that I'm putting in front of you but I'm using my 22 memory and it's not always the best. 23 24 (BRIEF PAUSE) 25
3251 Q: It's for the record -- I apologize. 2 It's for the record the conversation between Wade Lacroix 3 and Staff Sergeant Brian Deevy of September 7th, 1995, 4 18:45 hours if a copy could be provided to the 5 Commissioner and a copy to the Witness. 6 THE REGISTRAR: 18:45? 7 MR. JULIAN FALCONER: Yes. 8 THE REGISTRAR: It is Exhibit P-1361. 9 MR. JULIAN FALCONER: P-1361. It just 10 goes to show you, Mr. Commissioner, if I do it enough 11 times... 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: Now, I don't have a lot of questions 15 about this particular transcript. I've asked a number of 16 witnesses about it and I don't intend to be as lengthy 17 with you as others. 18 I just want to know a simple question, do 19 you recall the evening of September 7th, 1995, whether in 20 and around 6:45 p.m. you would have been in the company 21 of Wade Lacroix? 22 A: On September 7th? 23 Q: Yes, the next day in the evening 6:45 24 p.m.? 25 A: No, I don't believe so.
3261 Q: All right. Do you want to check your 2 notes? 3 4 (BRIEF PAUSE) 5 6 Q: Have you checked your notes? 7 A: Yeah, I was off. 8 Q: You were off? And you were off duty? 9 A: I was. 10 Q: Right. That of course doesn't remove 11 the possibility that you could have been with Wade 12 Lacroix, can you now address your mind to that? 13 Were you with Wade Lacroix at 6:45 p.m. 14 the night of September 7th? 15 I'm not telling you you were I just -- I'm 16 asking you if you were. 17 A: When I completed giving my statement 18 to Officer Donaldson on the 7th I packed up my stuff and 19 was told to go home. 20 Q: All right. And you did that? 21 A: And I returned to my residence and I 22 was not in the company of Staff Sergeant Lacroix. 23 Q: You used the words -- so -- so that's 24 fine, you can put that transcript aside. 25 You used the words to My Friend in-chief
3271 that because of the visibility problems you had, quote, 2 "limited contact" and "limited visibility" with respect 3 to the person on the ground. 4 And to be honest with you I think you may 5 have said it to Ms. Johnson rather than Ms. Vella but you 6 said limited contact and limited visibility with respect 7 to the person on the ground. 8 Do you remember saying that? 9 A: I believe so, yes. 10 Q: And then yesterday when you talked 11 about the darkness you said, quote: 12 "It was difficult to make out a lot." 13 Do you remember saying that? 14 A: Yes. 15 Q: All right. You were expected to 16 march down a road where it was difficult to make out a 17 lot with limited visibility when you didn't know if the 18 people at the fence had AK-47's, am I correct? 19 A: A lot of the visibility problems we 20 had were created by people moving and of course by the 21 spotlights and looking through shields and helmet 22 shields, that was part of the problem, yes. 23 Q: But is the gist of my question to you 24 correct, that you were expected to do that when you 25 didn't know if the people at the fence line had AK-47's?
3281 Am I correct? 2 A: Yes. 3 Q: Without meaning to be dramatic that 4 must have been quite frightening? 5 A: It was -- it was very unnerving, yes. 6 Q: I want to understand something about 7 your reference to the healing circle. 8 Was that a term that was used by the 9 doctor at the time, healing circle? 10 A: I don't recall if that term was used. 11 Q: Is it a term I could find in your 12 notes from that time? 13 A: No. 14 Q: Was it a term any of the other 15 officers used at the time? 16 A: I don't know. 17 Q: Is it possible that it's a term that 18 you've decided to use in the context of this Inquiry? 19 A: I'll tell you why I said it. 20 Q: All right. 21 A: Because I recall An eagle feather or 22 I believe it was an eagle feather was passed around as 23 each person had an opportunity to talk. So that's why I 24 referred to it as a healing circle. 25 Q: Fair enough.
3291 A: That's my recollection. 2 Q: And the person who -- that was 3 facilitating this, their name was? Do you have any re -- 4 A: Dr. Hoath was there. 5 Q: Right. 6 A: There may have been others 7 facilitating that. 8 Q: That's why I was trying to understand 9 if he would have been the initiator of the healing 10 circle. 11 A: He partook. I didn't take any notes 12 on it because I was talking to Dr. Hoath. 13 Q: And I wasn't being critical. I was 14 just asking about that terminology that's all. I -- I 15 have to ask you something because if -- if I don't, I'll 16 kick myself forever. 17 When you were trained in the usage of the 18 fogging device, did it ever come up that it could be used 19 to halt a vehicle? 20 A: No. 21 Q: No, all right. Did anybody ever 22 seize your fogging discharge item and determine if it had 23 actually been discharged that night? 24 Did anybody ever seize it? 25 A: I don't believe so.
3301 Q: Thank you, sir. That completes my 2 questions. 3 COMMISSIONER SIDNEY LINDEN: You said 4 ninety (90) minutes, you've taken an hour. Thank you 5 very much, Mr. Falconer. 6 MR. JULIAN FALCONER: Oh, I did not file 7 the evidence of Officer Root. 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. JULIAN FALCONER: Could you file that 10 as the next exhibit please. 11 THE REGISTRAR: P-1424, Your Honour. 12 MR. JULIAN FALCONER: Thank you. 13 COMMISSIONER SIDNEY LINDEN: P-1424. 14 15 --- EXHIBIT NO. P-1424: Examination-In-Chief of Wayde 16 Jacklin and James Root. 17 18 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 19 Jones...? 20 MS. KAREN JONES: Thank you, Mr. 21 Commissioner. 22 COMMISSIONER SIDNEY LINDEN: I forgot to 23 ask you how long do you think you'll be. 24 MS. KAREN JONES: I think I'll be fifteen 25 (15) twenty (20) minutes.
3311 COMMISSIONER SIDNEY LINDEN: Fifteen (15) 2 twenty (20) minutes. 3 4 CROSS-EXAMINATION BY MS. KAREN JONES: 5 Q: Good afternoon. Just to follow up on 6 the last question. Were you of the view that using a 7 fogger would stop a bus? 8 Or were you of the view that use of a 9 fogger might somehow hopefully incapacitate a driver? 10 A: That -- that was my thought process 11 at the time that it could be used to prevent the driver 12 from driving that bus. 13 Q: Staff Sergeant Jacklin, I -- I wanted 14 to take you back a little bit to the start of your 15 evidence yesterday and I'm not going to spend a lot of 16 time on this but, Ms. Vella had asked you just a couple 17 of questions about your experiences in policing First 18 Nations areas prior to September of 1995. 19 And you just had -- you had a very brief 20 question, a very brief response about when you were in 21 Sombra you would have policed at Walpole Island. 22 And I just want to ask you a few more 23 questions just to get a better sense of your policing 24 experience on Walpole Island prior to September of 1995. 25 Can you tell us a little bit about the
3321 scope of your duties on Walpole? How would that have 2 been an area you policed like any other area or would it 3 have been something different? 4 A: When I first began policing on 5 Walpole Island there was -- my recollection there was 6 about four (4) maybe five (5) Island officers. They were 7 sworn Walpole Island officers obviously with the short -- 8 small number they had they couldn't cover all shifts on 9 the Island. 10 So as a member of Sombra Detachment, if I 11 was working the south zone of our area, primary duty was 12 to respond to calls to back up Walpole Officers or to do 13 calls when they were not working on the Island. 14 Q: Okay. And can you give us some idea 15 of -- of what you were -- professional relationships were 16 like with the officers on Walpole Island? 17 A: At that -- we had very good working 18 relationships with the officers on the Island. We played 19 hockey together on Tuesday mornings, we'd often -- we had 20 golf tournaments each year that -- over in Baldoon Golf 21 Course with members of the police department but also 22 with members of the community. 23 Once the new arena was built, we -- if I 24 was working Saturday mornings or the weekends we'd go to 25 breakfast on the Island and eat in the restaurants.
3331 My opinion of that time is I had a good 2 working relationship on the Island and I had no reason 3 not to feel welcome. 4 5 (BRIEF PAUSE) 6 7 A: In fact, back in -- let me just add 8 to that. Definitely prior to 1995, there was an officer 9 that was a new officer to Walpole Island, Randy Koda 10 (phonetic) that was -- had a -- he'd been beaten very 11 badly when he was working on, I believe it was, Oneida 12 Reserve and he'd been off for many months. 13 When he came back to work, he became -- he 14 came back as a Walpole sworn officer and my Detachment 15 Commander at that time was Gord Miller and he asked if I 16 wouldn't mind riding with Randy and we would spend time 17 together. 18 It was important that he got back on his 19 feet; that he became comfortable again and that he was 20 going to require some assistance in this matter. 21 And we spent a considerable amount of time 22 doubled up, me as an OPP officer and him as a Walpole 23 Officer, working the island together to build his 24 confidence and I took that as -- as a bit of a 25 compliment, I guess, that the Detachment Commander put
3341 enough trust and faith in me that I could take this 2 officer and be comfortable working wherever we went, and 3 we did that. 4 Q: Thank you. 5 6 (BRIEF PAUSE) 7 8 Q: Ms. Vella and others have asked you 9 some questions about the arrest process and different 10 actions that an officer can take in the course of that. 11 But I wanted to make sure that we had gone 12 through that clearly, and I just had a few more questions 13 to ask of you. 14 First of all, you had talked about the use 15 of force and you had talked about in some circumstances 16 it may be necessary to affect arrest. 17 What do you -- what do you base that 18 statement on? 19 The -- when arresting somebody, there's a 20 lot of factors you have to consider. Obviously, your 21 observations at the time and they would involve the 22 condition of the person, the mental state, the size of 23 the person, the sex of the person, previous past. 24 So there's a whole number of factors. 25 Again, of course, then there's the officers who -- the
3351 officer's side of it as well. 2 The off -- my own abilities, how 3 comfortable I am in that situation. Those are factors 4 you must consider. And those factors, when you consider 5 both, is going to determine the officer's use of force. 6 An example, a hundred (100) pound officer, 7 female officer for example, confronted with a three 8 hundred (300) pound person, what they perceive as being a 9 threat, I'm sure would be very high with a violent three 10 hundred (300) pound person. 11 It would be high to me as well. But it 12 may not be -- I mean, I'd look at it quite the same way 13 and what you -- level of force I may apply may be 14 different. 15 Q: Okay. And is there legal authority 16 for officers to use force, if necessary, during -- to 17 affect an arrest? 18 A: Yes. Section 25 of the Criminal 19 Code. 20 Q: And can you help us with what that 21 says? Or paraphrase that. 22 MR. JULIAN FALCONER: Mr. Commissioner -- 23 COMMISSIONER SIDNEY LINDEN: It's not 24 necessary to ask him to interpret the law for us, Ms. 25 Jones, it really isn't.
3361 OBJ MR. JULIAN FALCONER: That is my 2 objection. 3 COMMISSIONER SIDNEY LINDEN: I am -- I 4 think that's not necessary. 5 MS. KAREN JONES: Okay. 6 7 CONTINUED BY MS. KAREN JONES: 8 Q: And in terms of the arrest process, 9 is there a process that you are required to follow -- 10 A: Yes, there is. 11 Q: -- and -- okay. And can you just 12 tell us what that is? 13 A: Normal arrest procedure is that, 14 obviously, you're present with the person you're 15 arresting. You advise them that they're under arrest. 16 You're supposed physically touch the person, give them a 17 basis of the arrest, lay out the substance offence to a 18 certain degree. You have to read them their rights to a 19 lawyer and caution them. 20 Q: Okay. And in terms of the night of 21 September -- actually let me go back a little bit. 22 If in the course of arresting someone you 23 had concerns about their health or their safety, in your 24 view what is the primary concern, going through the 25 arrest process or attending to those other needs?
3371 A: Personal safety and other people's 2 safety is always paramount, always comes first. 3 Q: Okay. In terms then on the night of 4 September the 6th with Cecil Bernard George, when I 5 listen to your evidence as I understand it you didn't go 6 through an -- an arrest process with Cecil Bernard 7 George. 8 A: That's correct. 9 Q: And why was that? 10 A: Because the situation at the time did 11 not allow that to take place. 12 Q: And -- and what do you mean by that? 13 A: Well, when he was placed in the 14 prisoner van and things went from a very volatile 15 situation to much greater than that, it went off the map. 16 At that time Mr. George was back in the 17 prisoner van, I had directed the driver to get him to 18 medical attention, that had been passed on. 19 I asked for an ambulance, that had been 20 passed on and then when the bus exited it was imperative 21 that we get away from there, away from the prisoner van. 22 There was nothing we could do at that point and we went 23 back onto the road. 24 Q: Okay. And can you tell me, so long 25 as the arrest team has custody over or is with a prisoner
3381 is that person under your direction, your authority, your 2 care, and your control? 3 A: When that person's with the arrest 4 team? 5 Q: Hmm hmm. 6 A: Yes. 7 Q: And on the night of September the 6th 8 when the prisoner was put into the prisoner van and you - 9 - at that point in time when the prisoner's in the 10 prisoner van was -- and -- was he under your care and 11 control or was that passed over to the driver of the 12 prisoner van? 13 A: It was ultimately passed over to the 14 driver of the prisoner van. 15 Q: Okay. And was the driver of the 16 prisoner van a member of the CMU arrest team? 17 A: No. 18 Q: Did you have any authority or 19 jurisdiction as in essence the element leader of the 20 arrest team for the CMU over that other police officer? 21 A: Authority? 22 Q: Hmm hmm. 23 A: No. 24 Q: Okay. I just wanted -- in terms of 25 the arrest I just had a couple more things to ask you.
3391 When you were directed to look at the 2 Project Maple book and you were asked to turn to the 3 section that deals with investigations and could -- could 4 you do that now for me? 5 6 (BRIEF PAUSE) 7 8 Q: And first of all did you ever see 9 this section or look at this portion of the document 10 before today? 11 A: I don't believe so. 12 Q: Okay. I wanted to give you a minute 13 to review a couple of portions of it because I think 14 that's just fair to you given the kind of questions that 15 were asked. 16 First of all, did you have or did you know 17 if any -- did you have any role in the preparation of an 18 operational plan for the investigators at Ipperwash? 19 A: No. 20 Q: Were you an investigator at 21 Ipperwash? 22 A: No. 23 Q: Okay. And so on the first page when 24 you go down a bit and it talks about arrest teams and it 25 says:
3401 "Where possible arrest teams will 2 consist of one (1) male officer and one 3 (1) female officer as we can expect 4 arrests that will include both men, 5 women, and children." 6 Do you see where I am? I'm sorry, 7 Officer. 8 A: Is this still under Investigations 9 or...? 10 Q: My book doesn't have tabs in it the 11 way that yours does. I'm looking at -- and my page also 12 isn't numbered, but I'm looking at a page that says 13 Operational Plan Primary Investigator File Coordinator. 14 And if you turn over two (2) pages you'll 15 see the arrest report sheet that Mr. Scullion directed 16 you to. 17 18 (BRIEF PAUSE) 19 20 COMMISSIONER SIDNEY LINDEN: It's the 21 page in front of the tab. 22 THE WITNESS: Sorry it was on the 23 actual... 24 COMMISSIONER SIDNEY LINDEN: It's in 25 front of the tab not after.
3411 THE WITNESS: Yeah. I thought the tab -- 2 sorry. 3 MS. KAREN JONES: I'm tabless so I'm 4 sorry if I wasn't very much help to you. 5 6 CONTINUED BY MS. KAREN JONES: 7 Q: Okay. 8 A: I think I found it. 9 Q: Okay. So if you look on that page 10 and if you want to take a minute to review that page, you 11 ought to do it because what I wanted to ask you is under 12 the paragraph that deals with the arrest teams. 13 It talks about arrest teams consisting of 14 a male officer and a female officer and sets out a 15 protocol that's going to be forwarded about arresting 16 people, accompanying them to a transport site, filling 17 out an arrest sheet by the team, taking a picture and on 18 and on and on. 19 And I wanted to ask you first of all on 20 the night of September the 6th, was there any arrest 21 teams consisting of a male officer and a female officer-- 22 A: I don't believe -- 23 Q: -- down at that sandy parking lot? 24 A: No. 25 Q: Was this a plan that was in place for
3421 your arrest team on the night of September the 6th in the 2 sandy parking lot? 3 A: No. 4 Q: Have you ever seen the arrest report 5 that the investigators had planned to use for their 6 arrest teams before today? 7 A: Not that I recall. 8 Q: And you were then asked to look at a 9 -- at turning over a page from the arrest report that 10 said Primary Logistical Requirements. 11 12 (BRIEF PAUSE) 13 14 A: Yes. 15 Q: Do you see that? And it talks about 16 at the scene having two (2) identification officers with 17 two (2) video cameras. And that was what Mr. Scullion 18 was referring you to. 19 Were you an identification officer? 20 A: No. 21 Q: And so far as you knew were there any 22 identification officers down at the sandy parking lot on 23 the night of September the 6th? 24 A: Not that I recall. 25 Q: Can you tell us to your -- and then
3431 turning over the next page you were shown a chart that 2 says Action/Reaction and possible charges. 3 A: That's correct. 4 Q: And had you ever seen this document 5 before you were in the stand today? 6 A: Not that I recall. 7 Q: And do you agree with me that when 8 you're in a situation like you were on the night of 9 September the 6th, that there are a number of bases on 10 which an arrest could be made? 11 And one (1) would be based on your person 12 observations. 13 A: Yes. 14 Q: And one (1) would be based on 15 directions from officers if you had reasonable and 16 probably grounds to make that arrest? 17 A: That's correct. 18 Q: As opposed to a chart that you 19 haven't seen before? 20 A: That's correct. 21 Q: Okay. Just going back to September 22 the 6th in the evening while you were at Checkpoint 23 Charlie. I can if you want, take you through some of the 24 transmissions that were played for you or identified as 25 an exhibit.
3441 But -- and if I need to I'll do that. I 2 just want to ask you though if from your recollection and 3 from listening to those transmissions, if you can confirm 4 that the roads were closed leading up to the sandy 5 parking lot? 6 So Army Camp Road and East Parkway. 7 A: Were they closed when we were on 8 Checkpoint Charlie? 9 Q: Yeah. 10 A: I don't recall if they were at that 11 time. 12 Q: Okay. Can I -- can you just wait. 13 Pull up your little bundle then with the transmissions on 14 them. 15 16 (BRIEF PAUSE) 17 18 Q: Do you have that in front of you? 19 And I want to refer you to the transmission on September 20 the 6th, 1995 at 21:03 hours. And you'll see that 21 there's a number at the top of it saying P-1142. 22 23 (BRIEF PAUSE) 24 25 A: On the first page, 21:03?
3451 Q: On the first page, yeah, 21:03 -- 2 A: Yes. 3 Q: And you might also see a P-1142. And 4 you'll see that this -- the start time of this 5 transmission is at 21:03 hours. 6 A: Yes. 7 Q: Do you see that? And if you turn 8 over to the second page, you'll see part way down the 9 page there's a series of exchanges: 10 Charlie, that's 10-4. 11 Lima 1, checkpoint Alpha from Lima 1 12 read. Alpha [it says ia] 13 Lima 1, you're to have the roads closed 14 there and checkpoint bravo should be at 15 your location as well as that, 10-4. 16 And Alpha says: 17 "That's 10-4. They're at this location 18 now and the road is closed." 19 Does that help you in recalling whether or 20 not the roads were closed? 21 A: Sorry, I -- I thought you meant when 22 we first got there. 23 Q: I wasn't clear and I'm sorry about 24 that. 25 A: I'm -- yes --
3461 Q: Yes. 2 A: -- the road was closed. 3 Q: Okay. 4 5 (BRIEF PAUSE) 6 7 Q: You had talked just slightly, or a 8 little bit about after the incident on the night of 9 September the 6th, later on and early on into the 10 morning, at one point in time you were out at a roadblock 11 at East Parkway and Ipperwash Road? 12 A: That's correct. 13 Q: And I just have a couple of questions 14 to ask you about that. One was, during the period of 15 time you were at the blockade, did you or other officers 16 have guns out? 17 Excuse me, I'm sorry.... 18 19 (BRIEF PAUSE) 20 21 Q: Or actually, let me change that. Did 22 you have your long guns with you, do you recall? 23 A: I don't recall us having long guns, 24 no. 25 Q: Okay. And can you tell me whether
3471 your regular side arms, would you have had those with 2 you? 3 A: Yes. 4 Q: Okay. And can you tell me whether 5 there are any laser sights on those guns? 6 A: There are not. 7 Q: Okay. You were asked a question 8 about whether or not you believed Larry Parks' report of 9 hearing automatic gunfire? 10 A: Yes. 11 Q: And one of the things that you said 12 in cross-examination today, and I -- and I think it was a 13 slip of the tongue, was that you had no reason to believe 14 that his report was accurate. 15 A: Oh. 16 Q: Did you want to -- did you want to 17 correct that? 18 A: I have no reason to believe his 19 report was inaccurate. 20 Q: Okay, thank you. 21 22 (BRIEF PAUSE) 23 24 Q: You were asked a number of questions 25 about the sequence of events or what people were
3481 referring to, based on a transcript of the ERT recordings 2 that Mr. Rosenthal read to you. 3 A: Yes. 4 Q: Can you tell us whether or not you 5 specifically recall the transmissions from that 6 transcript? 7 A: On September 6th, going towards the 8 sandy parking lot? 9 Q: That's right, yeah. 10 A: I don't recall everything 11 specifically, no. 12 Q: Okay. And during the period of the 13 time that you were in the sandy parking lot, do you 14 recall the specific transmissions while you were in the 15 sandy parking lot? 16 A: No. 17 Q: Okay. And can you speak to, then, 18 what was going on when specific mention is made of 19 certain events in the transcript? 20 A: When some of the transmissions are 21 going on, there was a lot of activity going on. 22 Q: Sure. 23 A: So there may have been some -- I do 24 remember bits and pieces of it. To remember specifically 25 all of it, that's very difficult.
3491 Q: Sure. You were asked some questions 2 about the muzzle flash that you saw on the night of 3 September the 6th, and you told us that it was on the 4 south side out of East Parkway. 5 A: That's correct. 6 Q: And I think you gave a location, or 7 an approximate location of where it was. 8 Did you have any idea who had the gun or 9 who was holding the gun that the muzzle flash emanated 10 from? 11 A: No. 12 Q: Okay. I wanted to ask you if you 13 could look at Tab 34 in your book. 14 15 (BRIEF PAUSE) 16 17 Q: And that's a document that Ms. Vella 18 put to you that has a diagram of -- it -- it appears to 19 be a Crowd Management Unit formation? 20 A: Yes. 21 Q: And I just wanted to be clear on your 22 evidence. You've told us that, in your view, the 23 description of who was in the arrest line or at least the 24 -- the arrangement is incorrect? 25 A: From my recollection, I --
3501 Q: Yeah. Can you speak to anything else 2 in that document as to its accuracy? First of all, did 3 you have any role in arranging or preparing this 4 document? 5 A: No. 6 Q: Do you have any idea who did do it, 7 or the information it was based on? 8 A: I do not. 9 Q: Okay. And can you speak to, for 10 example, with any of the other units, whether or not the 11 people on them are identified accurately or in the right 12 order? 13 A: The -- the only two (2) that I'm 14 certain of, and I'm not sure left or right -- 15 Q: Hmm hmm. 16 A: -- was Officers Wood and Melnick with 17 the dogs, they were right -- 18 Q: Yes. 19 A: -- behind us. 20 Q: Okay. Directly behind you? 21 A: When we -- initially, yes. 22 Q: Okay. And other than that I take it 23 you can't speak to that document at all -- 24 A: That's correct. 25 Q: -- in terms of its accuracy? I want
3511 -- have a very few questions to ask you about Cecil 2 Bernard George. 3 A: Yes? 4 Q: I wonder if you could turn to Tab 27 5 of the book in front of you? 6 7 (BRIEF PAUSE) 8 9 Q: And you can turn to page 300. And 10 this is the transcript of your evidence at Cecil Bernard 11 George's trial. Are you there? 12 A: Yes. 13 Q: And I wanted to direct your attention 14 down towards the bottom of the page. There's a question: 15 "How many of you dealt with him on the 16 ground at the that he was still on the 17 ground?" 18 Do you see where I am? 19 A: Yes. 20 Q: Okay. And the answer: 21 "I think our whole arrest team went up 22 and at first the guys I think were 23 going to handcuff him, and I said, no, 24 I could tell he was injured. I said, 25 Don't handcuff him and I told the guys
3521 to pick him up. Of course I was 2 screaming at this point, Pick him up, 3 get him to the back, because at that 4 time there was a lot of stuff being 5 thrown at us as well." 6 What I wanted to ask you about, that 7 answer was when you said that you could tell he was 8 injured at the time you got up to the person on the 9 ground. Can you tell us what that was based on? 10 A: That was based on a -- a fleeting 11 glance. 12 Q: Okay. 13 A: That was it. 14 Q: And -- and what did you see in that 15 fleeting glance that made you believe he was injured 16 before you got to him? 17 A: I don't know what led me to believe 18 that. 19 Q: Okay. And there have been 20 allegations at this Inquiry that in the sandy parking lot 21 Cecil Bernard George was dragged by the hair. Did you 22 ever see him drug by his hair? 23 A: I didn't see that, no. 24 Q: Okay. Did you ever drag him by his 25 hair?
3531 A: I did not. 2 Q: Would that be an effective way to 3 move somebody from one (1) point to another in the 4 circumstances? 5 A: No. 6 Q: Why is that? 7 A: The -- to lift a person off the 8 ground and carry them, if I was going to do that it would 9 be by the arms and legs. 10 Q: Sure. It would be much faster? 11 A: Yes. 12 Q: It would be much more effective? 13 A: It would be, yes. 14 Q: And you'd have much more control? 15 A: Yes. 16 Q: Which you desperately need -- 17 A: Yes. 18 Q: -- at that time. You were asked as 19 to whether or not there was any direction, or whether you 20 had considered, I think, and I'm not completely clear of 21 the question and I -- I don't want to try to paraphrase 22 it, clearing Matheson Drive on the night of September the 23 6th, in that that was a public area that was potentially 24 blocked. And you had said that wasn't the case. 25 A: No, I didn't --
3541 Q: And that that was not the plan? 2 MR. JULIAN FALCONER: Mr. Commissioner, I 3 apologize. Given the hour I suppose I'm slow on the 4 switch, but My Friend summarized evidence which was 5 frankly completely unfair, and obviously it's contentious 6 and at the end of this case we'll all have to argue. 7 But if the evidence of this man's hands 8 and feet being bound is accurate, then the suggestion 9 that they were desperately trying to get control of this 10 person who was bound hand and feet and virtually 11 unconscious, is just completely inconsistent with the 12 evidence. 13 COMMISSIONER SIDNEY LINDEN: She didn't 14 exactly say that, Mr. Falconer. 15 MR. JULIAN FALCONER: She did. She said 16 you're desperately trying to get control. That was the 17 words -- 18 COMMISSIONER SIDNEY LINDEN: Well, she 19 said it would be more effective and faster and they would 20 have more control. 21 MR. JULIAN FALCONER: Well -- 22 COMMISSIONER SIDNEY LINDEN: Yeah. 23 That's fine. 24 OBJ MR. JULIAN FALCONER: And my objection is 25 that there's no evidence of a desperation to get control;
3551 it's the opposite. This person was clearly under 2 control. 3 COMMISSIONER SIDNEY LINDEN: All right. 4 MR. JULIAN FALCONER: And grabbing him by 5 the hair would have been excessive force that might have 6 been resorted to for other reasons. 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. JULIAN FALCONER: I only say that -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. JULIAN FALCONER: -- because if My 11 Friend engages in argument one (1) way, then it attracts 12 argument the other way. 13 COMMISSIONER SIDNEY LINDEN: Yes. Okay. 14 You've put it on. Now, Ms. Jones, I don't want to get 15 into this now. You're on -- 16 MS. KAREN JONES: I'm not -- 17 COMMISSIONER SIDNEY LINDEN: You 18 indicated you were going to be fifteen (15) minutes; 19 you've been a half hour. So I don't want to rush you but 20 I -- 21 MS. KAREN JONES: Well, I'm -- 22 COMMISSIONER SIDNEY LINDEN: I'm just 23 surprised that you're covering so many areas when you 24 indicated such a short exam. 25 MS. KAREN JONES: I'm very close to being
3561 done, Mr. Commissioner -- 2 COMMISSIONER SIDNEY LINDEN: That's fine. 3 MS. KAREN JONES: -- and I'm sorry if I'm 4 going over the time. 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 MS. KAREN JONES: I am almost done. 7 8 CONTINUED BY MS. KAREN JONES: 9 Q: To your knowledge -- first of all, to 10 go back a little bit, I was asking you about Matheson 11 Drive versus the sandy parking lot? 12 A: Yes. 13 Q: And you had indicated, I believe, in 14 your evidence that there was a public safety concern 15 about occupiers being outside of the Park at the sandy 16 parking lot? 17 A: That's correct. 18 Q: And one (1) of the reasons you gave 19 for that was concern for the cottagers in the area? 20 A: That's correct. 21 Q: And, to your knowledge, are there any 22 cottages, or were there any cottagers at risk on Matheson 23 Drive? 24 A: At that time there -- there -- I 25 believe there was people still occupying some cottages in
3571 that area. 2 Q: On Matheson Drive? 3 A: Oh, no, there's no cottages on 4 Matheson Drive. 5 Q: Okay. And I wanted to finish with 6 just a few questions about the concept of clearing the 7 sandy parking lot, because I think you told us when you 8 left the TOC your understanding was that was the goal; 9 the plan was to clear the sandy parking lot. 10 And from your perspective, had you got to 11 the end of the road to the sandy parking lot, and there 12 was no one in the sandy parking lot, did you know what 13 would be next, or would you have been in a position to 14 get instructions at that time? 15 A: We would have received further 16 instructions at that time, but my -- I believe we were 17 leaving. 18 Q: Okay. Similarly, if when you arrived 19 at the end of the road and you got to the sandy parking 20 lot and there were people in the sandy parking lot and 21 they went back into the Park, would you -- was there 22 something specific you had in your mind you'd be doing or 23 would you be getting instructions then? 24 A: We'd be getting further instructions. 25 Q: If there were people in the sandy
3581 parking lot who stayed, and didn't go when you 2 approached, would your response, or what you would have 3 done, depended in part, at least, on their behaviour? 4 A: Absolutely. 5 Q: If you had issued instructions to 6 them to leave, and they had left, you would be in one (1) 7 position? 8 A: That's right. 9 Q: If instructions had been issued and 10 they refused to leave, there may be other avenues you'd 11 follow? 12 A: Correct. 13 Q: If they had weapons on their person 14 when they were there, there may be yet another course of 15 action you'd follow? 16 A: Yes. 17 Q: And if they attacked you there might 18 still be yet another course that you would follow? 19 A: Yes. 20 Q: Is that right? 21 A: That's true. 22 Q: Okay. Those are my questions. Thank 23 you very much. 24 Mr. Commissioner, I'm sorry to take so 25 long, I try to keep to my time.
3591 COMMISSIONER SIDNEY LINDEN: No, that's 2 fine. Thank you, Ms. Jones. It's hard to estimate, 3 everybody. Thank you very kindly, Ms. Jones. 4 Ms. Vella...? 5 6 (BRIEF PAUSE) 7 8 COMMISSIONER SIDNEY LINDEN: Any re- 9 examination? 10 11 (BRIEF PAUSE) 12 13 MS. SUSAN VELLA: I won't be very long, 14 Commissioner, but a couple of things have arisen. 15 16 RE-DIRECT EXAMINATION BY MS. SUSAN VELLA: 17 Q: You indicated, Officer, in the course 18 of cross-examination, and in-chief, that you assumed that 19 the muzzle flash that you saw in the -- emanating from 20 the south side of East Parkway Drive the evening of 21 September the 6th, you assumed that that came from a 22 police officer; do I have that right? 23 A: That was my belief, yes. 24 Q: Can you tell me what the basis of 25 your assumption was?
3601 A: Just -- it was based on where I 2 thought officers had scattered to. 3 Q: All right. In other words, to your 4 knowledge, were the police -- were there police officers 5 in that general vicinity at the time that you saw the 6 muzzle flash? 7 A: I believed there to be, yes. 8 Q: And to your knowledge, were there any 9 First Nations persons in that same vicinity when you saw 10 the muzzle flash? 11 A: Not that I saw, no. 12 Q: Thank you. You were asked some 13 questions about the -- the relative impact of the ASP 14 baton versus the wooden baton. 15 And just to be clear, when you received 16 your limited instruction on the use of your newly-issued 17 ASP baton on the evening of September the 6th, 1995, you 18 were not told what the relative impact would be if you 19 applied the same amount of force with the ASP baton as 20 you would -- as compared with the same amount of force 21 with the wooden baton? 22 A: Yes. Could I clarify something here? 23 Q: Certainly. 24 A: That ASP baton, that baton was 25 already being issued to our new recruits coming out, so
3611 that was a -- that wasn't something that was issued for 2 this detail specifically. 3 Other officers had been -- in the street 4 had already been issued that baton. It was going through 5 new recruits first. 6 So we just ended up getting them sooner. 7 Q: No, I appreciate that and I think you 8 made that clear. My -- my question had to do with what 9 knowledge you were provided when you received the ASP 10 baton that night. And you said it was, for you at least, 11 a newly-issued one. 12 A: Yes, and I -- 13 Q: And I just wanted to clarify that you 14 weren't advised whether there was any -- what the 15 relative impact of -- of -- of the use of force applied 16 with respect to the ASP baton would be relative to the 17 wooden baton, which is what you were used to using; is 18 that fair? 19 A: That's fair. And that's why I wanted 20 to qualify, because it was replacements for the other, so 21 therefore it was -- it served the same purpose. 22 That's why I want to make the comparison 23 between the two (2). 24 Q: Fair enough. But in any event, if 25 there is a difference --
3621 A: I wouldn't know the -- 2 Q: I'm not finished my question. 3 A: Sorry. 4 Q: If there is a difference, you would 5 want to have known what the difference would be so that 6 you -- to ensure that in ex -- in using or deploying the 7 ASP baton, you knew that you were using reasonable force? 8 A: That's correct. 9 Q: Okay. Thank you. And would you just 10 kindly -- my last area, go to Tab 6, Exhibit P-1387. 11 These are your notes, and if you would go, please, to 12 page 93, 13 entry at the end of your September 6th notation. 14 And halfway down, I think it's) the last 15 entry and I'll try to read it. You say: 16 "See statement provided to R. Donaldson 17 for further..." 18 Do you see that? 19 A: Yes. 20 Q: And that was a reference to the 21 September 7th statement that you provided to Officer 22 Donaldson? 23 A: Russ -- yeah, Russ Donaldson, yes. 24 Q: Yes, sorry. And what was your 25 intention in inserting this passage into your notes?
3631 A: It was to refer that my record of the 2 events had been captured in a statement by Officer 3 Donaldson. 4 Q: Was it your intention to incorporate, 5 by reference, the Donaldson statement into your notes? 6 A: That's correct. 7 Q: Do you have any further -- anything 8 further that you wish to add? 9 A: No. I have written a short 10 statement, if that's what you're asking. 11 Q: Would you like to share that with the 12 Commission? I take it it doesn't refer to any facts or 13 any of your evidence? 14 A: That's correct. 15 Q: All right. 16 17 (BRIEF PAUSE) 18 19 A: The situation in the sandy parking 20 lot on September 6th, 1995 is, for me, best compared to a 21 situation I faced when I was a peacekeeper in Cyprus. 22 That was war. I never thought I would experience 23 anything like that in Canada. I was a peacekeeper in 24 Cyprus and I considered myself a peacekeeper at 25 Ipperwash.
3641 One of the biggest tragedies about the 2 situation at Ipperwash was the effects on the people 3 after the night of September 6th. 4 I felt it personally in my life and I felt 5 it professionally as a police officer, particularly in my 6 relationships with the people on Walpole Island who I had 7 worked with for so many years. 8 Prior to September 6th, I was comfortable 9 working on Walpole Island. I felt welcomed there, 10 enjoyed positive relationships with the people there and 11 had many good friends. 12 Prior to September 6th, my experience was 13 that people would judge me on my work, based on who I was 14 as a person, and who I was as a police officer. 15 After September 6th, I felt that people 16 judged me by the marked vehicle I drove, rather than who 17 I was, and what I had done. 18 They were judging the vehicle, they were 19 not judging the person. This is a real loss for me, the 20 OPP and for the community. 21 I believe that at Ipperwash most people 22 wanted to resolve the situation peacefully and without 23 violence. 24 The few people who refused to talk and 25 were violent did not represent the wishes of most people
3651 to come to the table to discuss and to negotiate and to 2 co-operate in finding a positive solution. 3 We all have to co-exist and we all have to 4 value and recognize each other as individuals. 5 Understanding and forgiveness are the keys to moving 6 forward and living together in harmony. 7 Q: Officer, I'd like to thank you for 8 giving your evidence today at -- and yesterday, at the 9 Inquiry and I believe that concludes the evidence. 10 COMMISSIONER SIDNEY LINDEN: Thank you 11 very much for coming and giving us your evidence. 12 MR. JULIAN FALCONER: Mr. Commissioner. 13 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 14 Falconer...? 15 MR. JULIAN FALCONER: Yes, there's 16 something I wanted to put on the record. In terms of 17 process, I would be grateful, and because I have nothing 18 but respect for the notion of witnesses being invited to 19 -- any recommendations they think can help for the 20 future, but I would be grateful if My Friends would 21 consider staying with the practice of asking that 22 question prior to cross-examination, so that if facts are 23 referred to that maybe people regret, they can be dealt 24 with. 25 The trouble with doing it now is no one
3661 wants to ask -- 2 COMMISSIONER SIDNEY LINDEN: I 3 understand. 4 MR. JULIAN FALCONER: -- this officer 5 questions about statements, and I want to be -- 6 COMMISSIONER SIDNEY LINDEN: I 7 understand. 8 MR. JULIAN FALCONER: -- clear, I don't 9 want to ask him. 10 COMMISSIONER SIDNEY LINDEN: I 11 understand, Mr. Falconer. 12 MR. JULIAN FALCONER: I'd appreciate it. 13 COMMISSIONER SIDNEY LINDEN: Thank you. 14 MR. JULIAN FALCONER: Thank you. 15 COMMISSIONER SIDNEY LINDEN: We'll 16 adjourn now until tomorrow morning at nine o'clock 17 18 (WITNESS STANDS DOWN) 19 20 THE REGISTRAR: This Public Inquiry is 21 adjourned until tomorrow, Thursday April 27th at 9:00 22 a.m. 23 24 --- Upon adjourning at 4:50 p.m. 25
3671 2 3 Certified Correct, 4 5 6 7 8 ___________________ 9 Carol Geehan, Ms. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25